Feministing Reads: Ian Millhiser’s Injustices

It is not always easy to criticize the elders of your own family. But Ian Millhiser, a former Sixth Circuit Court of Appeals clerk, boldly hurls powerful critiques at the top of the judiciary’s food chain: the United States Supreme Court. 

In his book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted (Nation Books 2015), Millhiser provides a scathing rebuke of SCOTUS, arguing that “few American institutions have inflicted greater suffering on ordinary people than the Supreme Court of the United States.” Injustices argues that the Court has historically hurt America, continues to hurt America, and is in need of reform.

The Supreme Court is not always viewed as a political body and instead is regarded as a “sacred” branch of government, untainted by shallow politics. But core to Millhiser’s argument is that the Court is constructed by our partisan, money-driven political system. He writes in his epilogue, “Why should anyone trust the decisions of the Supreme Court to be rooted in neutral principles of law when its membership is easily manipulated by whichever political party last won a decisive election?”

Millhiser begins his argument with United States v. Cruikshank, an 1876 case in which the Supreme Court reversed the convictions of white murderers who had killed 150 black men and three white men in the “Colfax Riot.” Cruikshank is one of several appalling decisions of that era, including 1857’s Dred Scott v. Sandford which held that African Americans do not have standing to sue because they are not U.S. citizens, and 1896’s Plessy v. Ferguson which upheld racial segregation in public places.

Millhiser acknowledges the important times when the Supreme Court did protect and uphold civil rights: Brown v. Board of Education of 1954 which struck down segregation in public schools; the Earl Warren Court’s decision not to hear challenges to the Civil Rights Act of 1964 or the Voting Rights Act; and Roe v. Wade of 1973 which limited states’ authority to restrict abortion.

Despite these critical examples, Millhiser returns to the reality that constitutional protections are ultimately at the mercy of partisan politics, citing Shelby County v. Holder, a 2013 decision that gutted the Voting Rights Act as one of the most damaging modern examples showing that the Court’s decisions assume racism is over.

And Injustices also lays out the Court’s relentless failure to grasp economic injustice.

Citizens United and McCutcheon v. F.E.C. which struck down campaign finance laws, are two of the most important examples of this problem. According to Justice Roberts, campaign finance laws “may not seek to limit the appearance of mere influence or access.” As Millhiser notes, “The implication [of Roberts’s opinion] is that lawmakers can literally sell their time to donors at an hourly rate, just so long as they do not explicitly promise to cast a certain vote in exchange for cash….Indeed, if it were up to Roberts, wealthy donors would have broad latitude to — in Justice Anthony Kennedy’s words — ‘choose the judge’ in their own case.”

Millhiser does overlook one of the most poignant — and painfully recent — examples of how the Supreme Court has undermined human rights, demonstrated classism, and failed to value the contributions of women workers. In 2007, the Supreme Court held in Long Island Care at Home, Ltd. v. Coke that a home care worker who regularly worked 70 hours a week for $7 dollars an hour was not entitled to overtime pay.

The plaintiff in this case is Evelyn Coke, a Jamaican-born domestic worker who spent her career caring for ill and elderly people in New York. Because of longstanding U.S. labor regulations that excluded domestic workers, Coke had no legal right to overtime pay. Coke challenged these labor regulations with the aid of labor rights attorney Craig Becker.

But the Court didn’t agree that Coke should be entitled to overtime pay and in its deeply dismissive ruling, the Court focused exclusively on the deference to the existing labor regulations. (Happily, President Obama approved new regulations in 2013 that now include workers like Coke within overtime regulations.)

Injustices is a compelling rebuke of the Supreme Court and pushes for change. And Millhiser’s critique has very good company: In 2014, renowned constitutional law scholar and UC Irvine Law School Dean Erwin Chemerinsky offers a similar argument in The Case Against the Supreme Court. While reforming the Court is not going to be easy — Millhiser and Chemerinsky both offer policy recommendations including nonpartisan or “merit-based” judicial appointments system such as Alaska’s — the fact that such well respected legal scholars are now vocally making the case against the Supreme Court is a critical first step.