Monday, October 8, 2018

Book Review: 'Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted' by Ian Millhiser

Editor's note: This review was originally published at the Daily Kos, which notes that its "content may be used for any purpose without explicit permission unless otherwise specified." The original page can be found here
Review by Susan Grigsby

According to Ian Millhiser's Injustices:
The Warren Court was one of the great anomalies of American history— a brief period when the Supreme Court read the Constitution and saw some of the many ways it was intended to make American lives better.
For those of us who came of age during the reign of Earl Warren as the Chief Justice of the United States Supreme Court, it wasn't an anomaly, it was the way the Supreme Court was supposed to be. It was supposed to protect the rights of the individual, of the minority, of women. It was the Warren Court that struck down mandatory prayer in schools, in 1962's Engel v Vitale. In the majority opinion, Justice Hugo Black wrote a history of the relationship between church and state dating back to the 1500s. It is hard to believe that a Clarence Thomas would be capable of such writing today.

Although the most famous decision may have been in Brown v Board of Education, the Warren Court also gave us the right to privacy, the right to an attorney in criminal proceedings, paid for by the state if needs be, Miranda rights, protection from the use of evidence gained in an illegal search, and the right of a black woman and a white man to marry.
Today's Supreme Court makes some of the members of the Warren Court, which also included the later additions of  William J. Brennan, Jr., Charles Evans Whittaker, Potter Stewart, Byron White, Arthur Goldberg, Abe Fortas, and Thurgood Marshall, look like giants.
But today's Supreme Court, argues Ian Millhiser, is more the norm and less the exception that it appears to those of us who remember an earlier time. And he does it in a most readable manner, making this study of the Supreme Court accessible even to those who don't spend any time in law libraries.

Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted
Published by Nation Books
March 24, 2015
350 pages
Ian Millhiser, a former Sixth Circuit Court of Appeals clerk, is a Senior Fellow at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. This is his first book.
With those credentials, it is no surprise that this book was considered by Susan N. Herman, president of the ACLU as "a People’s History of the Supreme Court: partisan (in favor of 'the little people' rather than the elites the Court has favored)..."
Millhiser begins with the Supreme Court decisions that basically reversed the outcome of the Civil War and enabled the establishment of Jim Crow laws by leaving the newly freed citizens of the South with no protection under the Bill of Rights. The Court "told these former slaves to “look to the States” to vindicate their rights."
The Court then turned to the rights of employers. In 1895, New York passed a law that would protect the public from unsanitary conditions often found in local bakeries. The same law also protected bakery workers from working more than 60 hours a week or ten hours a day. At the time, it was common for bakers to work 14 to 16 hours a day, with one bakery demanding a 126 hour work week. When bakers went on strike, they were also protesting the working conditions that required them to sleep in the bakery, in often squalid conditions. The new law would protect them from the worst of these employment requirements.
In explaining this case, Millhiser paints a picture of life in the tenements of the 1880s, when 12 and 14 hour workdays and crowded tenements meant that women did not have time to bake bread for their families, and had to rely on the local bakery to provide it. The local bakers used basement quarters that were unsanitary, infested with rodents and often with leaking sewage. It was to protect the consumers that New York passed the law that eventually led to the Lochner case that serves as a clear example of judicial activism of the worst kind.
In Lochner v New York, the Supreme Court found that the Fourteenth Amendment protected a bakery owner's right to contract for employment under the due process clause, and overturned the New York law as an interference in this newly discovered right. Apparently the Court felt that the worker could enter into employment contract negotiations with the owner as an equal, but it did not appear much concerned, either way.
The Supreme Court proceeded in the following decades, to overturn laws designed to protect children from harsh labor conditions, and refused to side with unions or their organizers, consistently finding for owners and against protections as basic as a minimum wage. They agreed that States could sterilize women without their consent and that people could be shipped off to internment camps based only on their race. And that was long before they turned to eviscerating voting rights and flooding elections with the money needed to purchase them.
More than just a recitation of court cases, Injustices also deals with the human cost of these decisions and with the people who suffered as a result, from the freedmen of the Jim Crow South to the Lily Ledbetters of today. And it deals with the men, and recently women, in the black robes. He brings to life bigots like Justice James Clark McReynolds, who “refused to speak to Justice Louis Brandeis for Brandeis's first three years on the Court because Brandeis was Jewish,” and ties him all of the way back to pro-slavery Chief Justice Melville Fuller, a man who worked for Douglas Stephens and despised Abraham Lincoln. Whether they fought to preserve child labor, or to destroy New Deal programs, they did seem to share a fondness for bigotry.
Engrossing and educational, Injustice is a book that most progressives will want to read. Sadly, he Millhisen doesn't offer a lot of hope, pointing out that four of the current justices are in their late seventies or early eighties, and likely to retire within the next President's term of office. We are going to have to work very hard to make sure that a Republican does not get the opportunity to appoint their replacements or face a future in which the Roberts Court will continue to re-write the Constitution to make it reflect their political opinions.

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