Few American institutions have inflicted greater suffering on ordinary people than the Supreme Court of the United States. Since its inception the justices of the Supreme Court have shaped a nation where children toiled in coal mines, where Americans could be forced into camps because of their race, and where a woman could be sterilized against her will by state law.
In this powerful indictment of a venerated institution, Ian Millhiser tells the history of the Supreme Court through the eyes of the everyday people who have suffered the most from it. America ratified three constitutional amendments to provide equal rights to freed slaves, but the justices spent 30 years largely dismantling these amendments. Then they spent the next 40 years rewriting them into a shield for the wealthy and the powerful. In Injustices, Millhiser argues that the Supreme Court has seized power for itself that rightfully belongs to the people's elected representatives and has bent the arc of American history away from justice.
"An impressive debut offering explanations based on coherence between people, cases, and the events they adjudicated." (Kirkus)
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Is It HALF FULL or HALF EMPTY ? It Depends !
I bought this book because the author was interviewed by Stephanie Miller on her show on Free Speech TV. The title and interview sounded a bit negative. However, I thought I would give it a listen, hear for myself, and make up my own mind. To get the most out of this book one should have a general understanding how the Federal district courts, the Federal circuit court, and the Supreme Court work individually and together. The next paragraph provides a summary of the structure of the federal court system that does not occur until chapter 7 and is missed in part one of the book; however, if you already know the court structures skip the next paragraph.
“SC History: the ratification of the United States Constitution established the Supreme Court in 1789. Its powers are detailed in Article Three of the Constitution. The Supreme Court is the only court specifically established by the Constitution, and all the others were created by Congress. The Court first convened on February 2, 1790, by which time five of its six initial positions had been filled. The sixth member joined on May 12, 1790 every decision that it made is done by a majority of the Justices setting on a case. Congress has always allowed less than the Court's full membership to make decisions, starting with a quorum of four justices in 1789. Article III of the United States Constitution leaves it to Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices, and as the nation's boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, nine in 1837, and ten in 1863. In 1866, Congress passed an act providing that the next three justices to retire would not be replaced thinning the bench to seven justices by attrition. Consequently, one seat was removed in 1866, the second in 1867. However in 1869, the Circuit Judges Act returned the number of justices to nine, where it has since remained.”
The book starts into Supreme Court (SC) history toward the end of the Civil War in 1863. Lincoln exorcised his war powers to abolish slavery in states in rebellion. It took until December 6, 1865, to abolish the legal practice of slavery under the Constitution with the ratification of the 13th amendment. The 14th, amendment ratified July 9, 1868, defines citizenship and the rights of citizens and provides equal protection under the laws. The 15th amendment, ratified February 3, 1870, prohibits the federal and state governments from denying a citizen the right to vote based on that citizen's race, color, or previous condition of servitude. These reforms were not uniformly embraced. Those with pre Civil War mindsets resented these reforms and sought to undermine them. The Supreme Court left at Lincoln death had many such minds on the bench.
WHAT’S IN THE BOOK: SHORT VERSION
THE BOOK IS DIVIDED INTO THREE PARTS:
PART ONE: Discusses the judicial opposition to the 13th, 14th, and 15th amendments and how cases were interpreted in a way to restrict their effect to the federal government only, leaving state governments to run amuck with Jim Crow laws. Next, if the states or Congress tried to do something positive to improve worker safety by regulating hours or pay the Court bared it as an infringement on the employers’ right to negotiate terms of employment in a contract with individual employees holding it was a violation of the due process clause of the 14th amendment. [See Lockner v New York (1905)] Too bad if the employer held all the economic cards in this unequal negotiation. It took the 16th amendment 1913 to overturn a Supreme Court ruling in Pollock v. Farmers' Loan & Trust Co. (1895) against the governments’ authority to pass the first income tax law that only applied to the rich.
PART TWO: Discusses the Court’s swing to the left in the period from Roosevelt through Johnson. As the Court’s philosophy changed, the damage that was done in the years from 1863 to 1929 was revisited. New legislation from both state and federal legislatures correcting the faults of the past was upheld by the changed makeup of the Supreme Court. The new philosophy grew strong enough to attack Jim Crow, equalize the rights of women, and neuter states who had a pattern of discrimination in education and voting. The citizens’ rights balance with civil police authority was redefined.
PART THREE: Discusses the revival of conservative philosophy in the face of civil violence in 1967. Nixon took advantage of fear of riots to appoint four conservative justices. Bush appointed another two conservative justices. With the first four justices reasonable exceptions to restrictions on police power were made. Attempts to expand civil rights were blocked. With the Bush justices the court began to weaken the Civil Rights Act, Voting Rights Act, and other decisions modified the past Court decisions, and a decision on Campaign Financing to open the floodgates to increasing the power of money in politics. The author then discusses decisions of the Roberts Court and how Judge Alito has chipped away at civil and employee rights. Next the author discusses how the Affordable Care Act ended the practice of denying insurance to persons with a preexisting condition. He ends by expressing his fear for the future of the Court and its policy of Judicial Restraint may be overwhelmed by partisan strident intransigence.
MY FINAL RCOMENDATION IS A THUMBS UP:
I listened to the book and gave it a few days reflection. Yes, its mindset is a bit left leaning. However the scholarship and the facts used were in general fair and honestly treated and was not a political screed as I had feared from the title. I give this book a score of 8.5 out of a possible 10. It is strongest when it describes the needs of disempowered people. It is weakest when it fails to recognize that the justices on any Court in part represent the values they learned or reacted to those events that shaped their lives. The impression I get is the author suggests the Court member’s attitude comes from privilege, greed, indifference, or malice toward the poor. I cannot attribute these motives to the Court’s members past or present. The author has a liberal mindset. That is good. The liberal mindset is driven by a high empathy care / harm values toward others. However, the author must recognize the other values that drive the conservative mindset, like [(fairness / cheating), (loyalty / betrayal), and (authority / subversion)] based values are not wrong and have their own merit. Good Christian conservatives do not so much hate the poor as they are infuriated by individual examples fraud or cheating which abuse the public purse and rob the poor of sustenance, to use the Biblical term. For more on this topic listen to or read the “THE RIGHTEOUS MIND: Why Good People are Divided by Politics and Religion” by Jonathen Haidt.
Stylistically the paragraphs are a bit choppy and topic jump. They jump around a bit chronologically too. The Supreme Court cases cited are generally on point but again chopped up and mixed together, a bit haphazardly, with narrative for me to follow closely. I needed to use Google, Wikipedia, and use other sources, to get all I wanted and expected in the way of explanation of the Supreme Court decisions.
I do recommend this book after acknowledging its shortcomings. Conservative thinkers will not like it as well as I like it. Then I don’t fit easily in either box. Nevertheless, they too should give it a listen or read the book and not just dismiss it as a polemic of left wing touchy feely goodie two shoes crap. Just because conservatives may disagree with liberal focus the (care / harm) value priority; it does not mean that the history presented is wrong; nor the message that justices of both stripes bend the meaning of the Constitution toward the values their hearts cherish.
The ultimate answer to the question of is it half full or half empty depends whether one is viewing the book as a liberal or died in the wool economic conservative purest. From that prospective the answer is it is BOTH half full and half empty at the same time. Much like Schrodinger's cat experiment; until you open the book and listen / read it the cat is both alive and dead.
The narrator, Joe Barrett, did an excellent job; he did a Nixon impersonation when speaking as Nixon. The tone of the voice is rich and has a pleasant tambour on the ear. However, I would expect nothing less from the trained actor he is.
HERE ARE THE HITS AND MISSES I FOUND IN THE BOOK
HITS: The author did a good job outlining the need for legislative action to correct corporate abuse. The author did a good job describing the social attitudes and economic conditions. The author did a good job describing monopolistic practices of trusts and conspiracies between the trusts to suppress unions, strikes, boycotts, and buy influence with government to back their agenda. The author described the American Liberty Liege (a forerunner to Americans for Prosperity) opposing the new deal. The author described how an amendment process is a clumsy and subject to Supreme Court interpretation to turn the language on its head. The author described well the conservative power block in the Supreme Court that opposed Roosevelt and how the complexion of the court changed. The author described the effect of changing judicial philosophies on Court decisions and how they in turn provide the basis additional legislation. The author describes the effects of a renewed conservative majority on the Court and his fear for its future.
MISS: There is no description how the Federal District Court and Circuit Courts and the Supreme Court until chapter 7. Dissenting SC opinions are infrequently addressed. Summary of SC decision rational are insufficient, in my opinion. [I found myself stopping the narrator and using Google and Wikipedia to look up the Supreme Court cases being discussed for a more in-depth critique and analysis.] Perhaps beyond the scope of this book, the author failed to identify the political failing of the left to match the rights, so far successful, “Red State Strategy” of gaining control of state legislatures after the 2010 census allowing them to gerrymander the districts. The discussion of the practice of gerrymandering is insufficient. Nor did the author addressed the increasing trend to cut congressional staff in favor of de facto subcontracting of the legislation drafting to lobbies and industry think tanks who hand spoon feed their preferred language and approach back to the representatives and senators to tweak the final product and rubber stamp it toward a law. In the epilog the author does light his hair on fire a bit over his fears for the future rulings of the Supreme Court. Does the author have reason to be concerned? Yes! Do we need to be concerned over the ship of states ability to right itself from the effects of an unruly Court? No!
YOU WANT MORE THAN IN THE ABOVE SUMMARY OF BOOK CONTENT FLAVOR
A LONGER VERSION FOLLOWS:
WHAT’S IN THE BOOK: LONG VERSION
Part I, the first six chapters cover the period from the start of 1963 to the start of 1929.
It is characterized by judicial activism undermining the effects of the 13th, 14th, and 15th amendments and oppress worker rights in favor of business and property rights.
Reconstruction required the defeated rebellious states to accept the 13th amendment to regain their full states’ rights back. Chapter 1, describes the backlash of southerners chafing under reconstruction seizure of power through intimidation, violence, and the imposition of Jim Crow laws to strip the newly enfranchised black man of his voting rights relegating him to a status no better than a woman. Women did not get the right to vote until 1919. The implementation of Jim Crow laws were made possible when the Supreme Court held that the federal government did not have the jurisdiction to enforce the protections of the bill of rights and that citizens should look to their state legislature for laws and regulations to enforce their rights. This left the southern states free to impose Jim Crow laws and disenfranchise black voters.
Chapters 2, 3, 4, 5, and 6 cover the following topics: Chapter 2 describes how organizes workers’ who wanted to negotiate with Pullman rail were crushed when the local federal District Court held the union was a monopoly under the Sherman Antitrust Act (SAA) and enjoined them from striking. Federal troops were called in to restore order and enforce the injunction. The Supreme Court upheld the lower court decision but citing the law of nuisance to property rights to support the injunction. This was a broader authority to oppose labor movements then the SAA misinterpretation. Chapter 3 in 1892, the American Sugar Refining Company gained control of the E. C. Knight Company. This formed a trust that controlled 95% of sugar processing capacity. The trust also controlled the production, distribution, and price of sugar. Supreme Court ruled in 1895 limited the government's power to control monopolies neutering the Sherman Antitrust Act. Chapter 4 discusses opposition to the development of child labor laws. Congress passed the Keating-Owen Act in 1916. In 1918 in Hammer v. Dagenhart, the Supreme Court said that Congress does have the power to regulate commerce of goods only not the fact that the goods were manufactured by children and that the Keating-Owen Act was therefore unconstitutional. Chapter 5 discusses mill towns, work place safety, health, hours worked, and minimum wage in factories and mines. In a quartet of Supreme Court legislation designed to regulate worker hours or wages paid the Court found in Lockner v New York decision 1905 found that the employer’s right to contract with individual workers trumped the states right to regulate the negotiation process despite the economic inequalities of the parties. The Court held that for the state to infringe on this process was a violation of the due process clause of the 14th amendment. Chapter 6 the Supreme Court, in 1927, ruled that a state statute Permitting compulsory sterilization of the unfit, including the intellectually disabled, "for the protection and health of the state" did not violate the “due process clause” of the 14th amendment; the decision was largely an endorsement of negative eugenics. The Supreme Court also issued decision censoring descent speech against the war during WW I. The labor leader Eugene Debs was imprisoned not for his union activity but his opposition to censorship.
Part II: Begins in the 1929 and ends 1967; chapters 7 through 9
Chapter 7 describes how legislative progress was made reversing bad past decisions in part one. The National Labor Relations Act granted the right to organize and negotiate wages and working conditions and required employers to negotiate. In May 1935 the Supreme Court struck down a Railroad Retirement (Railroad Retirement Board v Alton Railroad) system at the same time President Roosevelt was working on Social Security legislation. Thus the battle lines were drawn. In the 1936 election The American Liberty Liege (a forerunner to today’s Americans for Prosperity) was formed to oppose Roosevelt re-election and his programs. Roosevelt won! The complexion of the SC changed with one justice defection and two replacement justices removing the battle lines with the Court.
Chapter 8 describes how a new deal southern democrat could support President Roosevelt yet remain an avowed segregationist. Described how the SC upheld the government’s right to intern Japanese American citizens in camps. Describes how Justices Black, Frankfurter, Warren and Brennen shifted the core conservative and oppressive philosophy of the Court to one more interested in the rights of the citizen. They set about to dismantling of segregation Jim Crow laws and reconnecting the citizens to the protections of the bill of rights.
Chapter 9 In 1964 Congress got off the sidelines and passed the landmark Civil Rights Act. This Act bolstered the Brown v. Board of Education of Topeka decision and slowly segregation began to buckle. Justice Rehnquist became the philosophical spokesmen for the conservative point of view that a person’s property rights trumped civil rights of individuals and a business can discriminate against its customers. Goldwater became the political spokesmen of this view. The author discusses the Senates filibuster role in frustrating civil rights legislation. He then discusses voter suppression and disenfranchising laws that frustrate the intent of the 15th amendment. Congress enacted the Voting Rights Act of 1965 to address this pattern discrimination. The Warren court rejected the challenges to the Civil Rights Act 1964 and Voting Rights Act 1965. Had judicial philosophy been different progress would not have occurred.
Part III: Begins in 1967 to Present in Chapters 10 through 13
Chapter 10 Looting and riots ends progressive activism. An incident of police brutality against a black taxi driver in Newark NJ triggered a 5 day riot ending in 26 dead and hundreds of injuries. The upshot of this was a frightened general populist and the election of a law and order candidate Richard M Nixon. The Warren court had previously limited police power by reforming police procedures in rejecting evidence from searching without warrants, providing counsel for the arrested, and the Maranda warning. Nixon appointed 4 justices Burger, Blackman, Rehnquist, and Powell with a more conservative bent reshaping in part the bench’s judicial philosophy. These four justices stopped the more liberal wing from equalizing funding for schools, created an exemption in the Maranda warning for immediate public safety needs, and ruled that information given freely to a company for business purposes (phone call numbers) has no expectation to privacy. However, three of these justices’ disappointed conservatives by joining the majority in deciding women have a right to control their body and reproductive rights in Row v Wade in 1973. Reproductive freedom is essential equal protection of women. Other protections of women unpaid maternity leave, and equal pay. Reagan justice department published a 153 page document “guidelines on constitutional litigation” to set a narrowed but moderate point of view. The guidelines instructed the justice prosecutors that some Supreme Court decisions are read narrowly and others given abroad affect. This set an overall moderate tone. John Roberts began in the Reagan justice department and 22 years later he is the Supreme Court Chief Justice.
Chapter 11 is titled “Rigging the Game”. This refers to the Supreme Court’s decision to interfere with the recount in the Florida’s election and declare George W Bush, President in 2000. Bush appointed Roberts and Alito to the Supreme Court bench. The Roberts court gutted the Voting Rights Act and opened the flood gates of money to the election process. This has inspires states to gerrymandering to favor Republicans and attempts to suppress voting through new voter identification laws. Judging between constitutional and unconstitutional gerrymandering is difficult. The standards are not clear. The current bench is punting on this issue. Other mischiefs being done at the state level are cutting early voting and requiring photo ID and purging of voter lists.
Chapter 12 discusses problems with the food and drug administration’s supervision of drug companies in the development of medicine. The author says that the current crop of conservative justices can undermine civil protections by interpreting the civil rights laws too narrowly, placing barriers between workers and the Court house door, by shunting consumer’s off into forced arbitration tribunals that are stacked in favor of the companies they are suing; the Courts undermine public protections as surely as the Lockner decision in 1905 when the Court turned the meaning of the due process clause of the 14th amendment upside down to protect employers. The author discusses the 2007 Lilly Ledbetter case and Justice Alito decision restricting her access to the Courts for relief. Congress did overturn the decision with the Lilly Ledbetter Act in 2009. The author discusses mixed motive lawsuits. In 2009 the Court acted to eliminate mixed motive lawsuits and Congress has yet to overrule it with legislation. In 2013 the Court acted to restrict the definition of supervisor to persons who has the power to hire or fire an employee. This opens the door for first line supervisors, directing normal operations, to harass or intimidate employees while insulating upper management from the liability of their agent, the first line supervisor. Modern questionable business activities like forced arbitration with captive corporate arbiters is discussed as barriers to access to the courts. The Courts love arbitration as a means of keeping nuisance issues and minor lawsuits off the court dockets. However, if arbitrators are not truly independent it is like hiring the fox to watch the hen house. This practice is being abused by business and is in need of regulation with Court backing. The Constitutional Accountability Center says their statistics suggest the court philosophy has in deed shifted in favor of business; 70% of the cases favor business since Alito joined the Court. By taking the concept that corporations are people too, the Court now grants these de facto “pseudo people” religious exemptions, as a way of poking holes in civil rights protections. Where in the Bible does it say corporations even have souls?
Chapter 13 discusses how the Affordable Care Act (ACA) ended the practice of denying insurance to persons with a preexisting condition. Several cases supporting the need for insurance coverage were discussed. Uninsured patients were reduced to being treated with free samples from caring physicians. The author then strays into politics pointing out that conservatives were for the ACA to protect the public from “free riders” in the 1990’s before they were against it in 2010. The author expressed outrage over the 13 states attorneys general that filed a suit opposing the ACA. The ACA survived the challenge by a whisker. The opponents centered their attack on the individual mandate. The Court rejected this attack citing the 16th amendment power to tax. The author comes close to discussing the “motivated reasoning” in “The Righteous Mind” I discussed in my recommendation when he spoke about minds being hard wired to a particular point of view. The author takes comfort that judges are concerned for their reputation and do not want to own a Lockner like decision as their legacy.
In his epilog the author bemoans the unassailability of the Supreme Court. However, the bottom line is that if the Court behaves in a way that is grossly offensive to the public and their congressional representatives Congress can act to curb an intransigent willful Court by adjusting the number of their membership. This is the nuclear option the justices need to respect. [ In my personal opinion the author does light his hair on fire a bit over his fears for the future rulings of the Supreme Court. Does the author have reason to be concerned? Yes! Do we need to be concerned over the ship of states ability to right itself from the effects of an unruly court? No! ]
More of a political history
Most of the book concerns a telling of the author's view of the historical background of a select few Supreme Court cases with comments regarding the author's opinion of the justices involved. Toward the end of the book, however, the author descends into a political speech about the current justices stances vis a vis the ACA that was not a coherent extension to the rest of the book.
- Catherine M