The Conservative Court

In 1963, I started work at the American Civil Liberties Union. My assignment was to establish new affiliates of the organization in states such as Texas and Oklahoma and to upgrade the capacity of long-standing state affiliates, such as those in Michigan and Pennsylvania. It was a thrilling time to be engaged in those tasks. ACLU activities were regularly punctuated by victories for civil liberties at the U.S. Supreme Court, many of them in cases argued by the lawyers I was working with. Those wins included cases substantially expanding the rights of criminal defendants to be treated fairly by the police and the courts, striking down loyalty oaths required of public employees, ending the censorship of movies, overturning the prohibition on interracial marriage, barring state-enforced religious practices, expanding the right to protest, upholding freedom of speech, equalizing the right to vote in state elections, requiring that welfare recipients should be treated fairly, and many more.

Chief Justice John Roberts in 2006 (Brooks Kraft LLC/Corbis via Getty Images)

In 1970, fifty years after it was founded, I became the ACLU’s fourth national executive director, a post I held for the next eight years. It was a very different period on the court. Richard Nixon became president in 1969 and soon had the opportunity to designate Warren Burger as chief justice of the Supreme Court, replacing Earl Warren. He appointed three other justices during his first three years in office. The Nixon Court succeeded the Warren Court.

The ACLU continued to prevail in some important cases. We supported the New York Times and the Washington Post in publishing the Pentagon Papers, helping to achieve a major victory for freedom of the press. We also established the pioneering Women’s Rights Project, directed by Ruth Bader Ginsburg, which won a series of victories before the Supreme Court that largely, though not completely, made overt discrimination against women as legally untenable as overt discrimination against racial minorities.

Though we took pride in the quality of the legal work of Ginsburg and her colleagues in those cases, we recognized that more was involved than litigation strategy and skill. A crucial factor in our success was the transformative impact of the women’s rights movement on American society in the 1970s. Women were securing jobs and workplace responsibilities previously denied to them; they were entering educational programs and professional specialties in which their presence had been scarce; they were enlisting men to share in domestic duties that most had previously disdained. Changes in the law required by our Supreme Court victories accompanied and facilitated these developments, but they did not take place in isolation. A similar process took place decades later when the Supreme Court struck down limits on gay rights, including the prohibition on same-sex marriage. Those decisions came down after the emergence of a substantial gay rights movement, which had already transformed American society by the early years of the twenty-first century. The Supreme Court’s decisions did not lead the way.

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The legal victories for women’s rights and gay rights in the past half century have partially obscured the picture Adam Cohen paints in his important book, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America. Cohen, a former member of the New York Times editorial board, makes a compelling argument that since the advent of the Nixon Court, the highest court in the land has been a consistent ally of corporate interests and the wealthy and the enemy of Americans who are less economically fortunate, especially those who are racial minorities. He achieves this by systematically analyzing the Court’s decisions on welfare, education, voting rights, campaign finance, labor, corporate responsibility, and criminal justice over the past five decades.

Cohen is particularly concerned with the Supreme Court’s treatment of poverty through its decisions dealing with welfare recipients. He writes that the Warren Court “appeared to be...