The Enemy of Poor Americans

Over the past half century, the Supreme Court’s empathy for the poor has been replaced by hostility.

Jonathan Ernst / Reuters

In June 1968, the Supreme Court issued a 9–0 ruling giving back Sylvester Smith and her four young children their welfare benefits, and striking down the “man in the house” rule. At the time, Alabama was one of a number of states, many in the South, that removed families from the welfare rolls if the mother was having sexual relations with a man, even if he was not living with her and was not supporting her children. The Court’s ruling restored welfare rights to as many as 500,000 children nationwide and sent a message that welfare caseworkers had to keep out of poor people’s bedrooms.

The Smith decision was one of a long line of cases in the 1960s recognizing new rights for the poor. If the Court had continued down that poverty-law path, poor people today would have significantly more legal rights.

Instead, 50 years ago, the Court shifted rightward. Although it has long enjoyed a reputation as the defender of society’s most disadvantaged, the Supreme Court is now considered, on many issues, an enemy of poor Americans.

The modern story of the poor in the Supreme Court begins in the early 1960s. A prosperous America was becoming more concerned about fighting poverty and President John F. Kennedy had made two appointments that created a liberal majority on the Court. The justices proceeded to hand down a series of landmark decisions that sided with the poor, including one in 1963, recognizing indigent defendants’ right to appointed counsel, and another in 1966, ending the poll tax that kept many poor people from voting. These rulings were remarkable not only for their holdings, but for the sympathy the Court showed. “We have come to recognize,” it declared in one, “that forces not within the control of the poor contribute to their poverty.”

The area in which the Court was boldest was welfare law. For most of the nation’s history, the poor had been scorned, and were expected to be grateful for whatever crumbs society sent their way. Now, the Court was insisting that welfare recipients had an array of enforceable rights. It even issued a major ruling that required states to give welfare recipients a formal hearing before cutting off their benefits.

The Court considered going even further. Throughout the 1960s, while President Lyndon Johnson and Congress were waging a War on Poverty, the Court seemed to be edging toward declaring the poor to be a constitutionally protected class, like racial minorities and other disadvantaged groups. When it struck down the poll tax, for example, the Court declared that “lines drawn on the basis of wealth or property, like those of race … are traditionally disfavored.” If poor people had been designated a protected class, activists would have had a powerful legal tool to unravel many more laws that discriminate against them.

This poverty-rights revolution ended very suddenly, however, in the early 1970s. After Richard Nixon was elected in 1968, he replaced Earl Warren, the liberal chief justice, with Warren Burger, a conservative, and quickly made three more appointments—a total of four conservative justices assigned to the Supreme Court in three years.

The ruling that made clear the Court’s sharply altered approach to the poor was Dandridge v. Williams, in April 1970. The Court, by a 5–4 vote, upheld Maryland’s “maximum grant” rule, which capped a family’s monthly benefits at about $250. The Court rejected a strong claim that the rule denied families with a large number of children equal protection of the law. Worse, the opinion bluntly declared that “the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.” Poor people who wanted to challenge the unfairness of welfare programs were once again on their own.

The conservative Court that Nixon created has been durable. Justices have come and gone, but the ideological makeup of the Court has remained the same: a conservative chief justice with a conservative majority behind him.

Over the past half century, the Court’s empathy for the poor has been replaced by hostility. In 1988, in Kadrmas v. Dickinson Public Schools, the Court ruled against the Kadrmases, a family in rural North Dakota living below the poverty level, who were seeking a waiver to a new school-bus fee. Sarita Kadrmas, who was 9 years old, attended school 16 miles away, and the family could not afford the fee to send her by bus. Justice Sandra Day O’Connor, writing for the Court, said tartly that it was “difficult to imagine” how little Sarita could have a right to be transported to school “for free.”

The Court has not only refused to extend new rights to poor people; it has also invoked dubious readings of the Constitution to take away rights that poor people have already won from Congress and the president. That was what the Court did in 2010, when it upheld most of the Affordable Care Act but, on the flimsiest of legal grounds, struck down its “Medicaid expansion” provision, requiring states to offer Medicaid to more people. In this case, the injury done to the poor can be measured not merely in dollars, but in lost lives. A study released last year found that about 15,600 deaths could have been averted over four years if all 50 states had expanded Medicaid under the Affordable Care Act.

If the Supreme Court had continued on the path laid out by the Warren Court, life for the poor would be far better today. One major setback: In 1973, the Court ruled 5–4, in San Antonio Independent School District v. Rodriguez, that states do not have to ensure that high- and low-income school districts have equal amounts of money to spend on students. If the case had come out the other way, millions of children in low-income districts nationwide would have greater educational opportunities and better life outcomes. They would be better off in another way: If the Court had held that the poor are a suspect class, or took a broader view of equal protection, they could challenge the glaringly unequal levels of welfare benefits across the country. Although benefits are not generous anywhere, in some states, like Wyoming and Mississippi, they are egregiously low, putting the poor in an untenable position.

One of the many issues at stake in this year’s election is the future of the Court. News coverage focuses on culturally divisive issues such as abortion, but the election will also help to determine the Court’s approach to the poor. If President Trump is reelected and gets to nominate even one more justice, the Court could start striking down crucial parts of the social-safety net, starting with the Affordable Care Act.

If, however, a Democrat is elected and gets to replace any of the five conservative justices, the Court could once again be a champion for the poor, instead of for corporations and the wealthy.