The Supreme Court of the United States and Anarcharsis’ Theory of the Law: A Review Article Of the book, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, By Adam Cohen (2020) New York: Penguin Press, 416 pages. ISBN: 978-0-73522-150-5

Courts provide a mechanism for resolving disputes within a given society. They base their decisions on interpretations of Constitutions, legislation, their previous decisions and those of other courts. A Supreme Court will be the last port of call in resolving disputes with its decisions being followed, or applied, by lower courts. There is an expectation, or maybe it is an heroic assumption, that courts will hand down impartial decisions, that judges do not possess and/or will be able to ignore any biases they have. With this view of the law, what is referred to as formalism, judges are mere technicians applying the law to cases presented to them for adjudication. For example, John Roberts, at his confirmation hearing prior to his appointment as Chief Justice of the Supreme Court of the United States, in 2005, said, “it’s my job to call balls and strikes, and not to pitch or bat” (p. 77). In adjudicating the competing claims of litigants courts are required to make a choice (an umpire’s call on whether it is a ball or strike determines the result of a game), which favours one litigant over another; and whatever is decided tautologically becomes ‘the law’. William Jethro Brown, President of the South Australian Industrial Court from 1916 to 1927, said judges seek to maintain the fiction that it is ‘the law’, rather than themselves, which make decisions: What determines the choices (decisions) made by judges? A realist view of the law says decisions, despite protestations to the contrary, are based on the background and biases of judges. Adam Cohen provides empirical support for this realist view in Supreme Inequality: The Supreme Court’s Fifty – Year Battle for a More Unjust America. Cohen distinguishes between two types of judges, liberal and conservative. He reports that liberal judges who have supported the rights of those with limited life opportunities have generally experienced and overcome personal or family hardship and/or discrimination. Conservative judges, on the other hand, generally have privileged backgrounds and little experience or understanding of the problems of those who live in straightened circumstances; they favour the rich and powerful, not just individuals but also corporations. In the last fifty years conservative judges on the Supreme Court of the United States have outnumbered liberals, usually by 5 to 4. Cohen begins his analysis with an examination of the Supreme Court under Chief Justice Earl Warren, from 1953 to 1969. The Warren Court pursued a liberal agenda which advanced the rights of minorities and the poor. Its most famous decision was Brown v Board of Education of Topeka (1), in 1954, which overturned racial segregation (the ‘separate but equal’ doctrine contained in Plessy v Ferguson, in 1896) in public schools. Cohen documents how conservative judges have been antithetical to the jurisprudence developed by the Warren Court. He says, “For five decades, the Court has, with striking regularity sided with the rich and powerful against the poor and weak, in virtually every area of the law” (p. xv). Its operation is consistent with the observation of the Greek philosopher Anarcharsis at the head of this review. Under the United States Constitution, Supreme Court members are appointed following nomination by the President and endorsement by the Senate. Cohen points out that conservative judges “have done a much better job of handing their seats to justices who share their views than liberals” (p. xix). They have timed their retirements to coincide with Republican administrations. Republicans have also worked to block the appointment of liberals to the Court by a Democrat administration (President Johnson’s attempt to nominate Abraham Fortas as Chief …