Court-Ordered Inequity

Legal journalist Adam Cohen ’84, J.D. ’87—last seen in these pages with an excerpt from his book on eugenics, focusing on University leaders’ support for that species of social engineering (“Harvard’s Eugenics Era,” March-April 2016, page 48)—has now cast his eye at the past half-century of Supreme Court jurisprudence. What he has found is summed up in the title of his new book, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America (Penguin Press, $30). The introduction begins with several examples, including an African-American catering assistant at a university who was racially harassed at her workplace, followed by this one:

Jack Gross, an Iowa insurance executive, had a similar difficulty with the Court a few years earlier. He was one of a group of high-performing workers over the age of 50 who were demoted by his company on the same day. Gross was forced to hand his responsibilities over to a younger worker he supervised. A jury ruled that he had been a victim of age discrimination and awarded him damages.

The Court overturned the jury’s verdict, again by a 5-4 vote. Gross met the standard of proof required in race and sex discrimination cases. The Court decided, however, that victims of age discrimination had a higher burden of proof, even though the federal laws against race, sex, and age discrimination used identical language. The dissenting liberal justices accused the majority of “unabashed …judicial lawmaking.”

…The financial and emotional toll on the losing parties in these cases has been considerable. Jack Gross was devastated when the Court manipulated age discrimination law to reject his case. “One of the things I have always counted on was the rule of law,” he said. Gross was also upset that, in addition to losing the damages the jury had awarded him, he was out more than $30,000 in legal expenses. “That is money,” he said, “that was intended to help my grandchildren get a college education so they wouldn’t have to starve their way through like I did.”

…As shattering as decisions like these have been for individuals, in the aggregate they add up to something much larger: a systematic rewriting of society’s rules to favor those at the top and disadvantage those in the middle and at the bottom. The Supreme Court has played a critical role in building today’s America, in which income inequality is the largest it has been in nearly a century. The Court’s decisions have lifted up those who are already high and brought down those who are low, creating hundreds of millions of winners and losers.