What Obama really meant by "redistributive change."

What Obama really meant by "redistributive change."

What Obama really meant by "redistributive change."

The law, lawyers, and the court.
Oct. 28 2008 4:23 PM

He's Not Robin Hood

What Obama really meant by "redistributive change."

Barack Obama. Click image to expand.
Barack Obama

On the stump, John McCain now segues from Joe the Plumber to "Barack the Redistributor." As in "redistributor of wealth and taker of your money." These are the Republicans' bad words of the week, much as "community organizer" was during this summer's convention. The prompt is a 2001 Chicago Public Radio interview Obama gave, pushed by Fox television and the Drudge Report on Monday. (Here's the transcript.)

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

In that interview, Obama was talking in law professor-speak, and in a couple of places in his discursive remarks he refers to "redistributive change." When he used the term, he was speaking against the backdrop of an old debate in the legal academy, which was not about who should pay higher taxes. So, what's the real context for Obama's remarks? It is both storied and, in the end, ho-hum.

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In 1964, law professor Charles Reich wrote a hugely influential article called "The New Property." Reich's idea was that some benefits, once conferred by the government, couldn't be taken away without some sort of legal process. Reich's "benefits" weren't necessarily for the poor. "When he was a law clerk to Justice Black, Charlie was struck by the injustice that a doctor, licensed to practice law in New York, could lose his right to practice—in this instance because of allegations he'd fought against Franco—without any procedural protection," says Yale law professor Judith Resnik, who taught the civil procedure class I read Reich's article for in law school. Reich's idea was that a government license could be a form of property, in the sense that, once granted, it shouldn't be taken away without a fair hearing. In 1970, the Supreme Court picked up on this idea in the context of welfare benefits. In a 6-to-3 decision, Goldberg v. Kelly, the court said that the state could not terminate those benefits without giving the recipient a hearing.

And that's pretty much where the idea of using the federal courts as a vehicle of economic justice begins and ends. There was an effort in the legal academy, in the wake of Goldberg, to establish poverty as a classification, like race, ethnicity, gender, and religion, that draws extra scrutiny from the courts when governments make categorizations based on it. But the Supreme Court didn't go for it. "Thundering greatness shall forever elude it," University of Chicago law professor Richard Epstein wrote of Goldberg 20 years after the decision, arguing that its influence proved limited. In the 2001 radio interview, Obama is talking along with another University of Chicago law professor, Dennis Hutchinson, who says, after a passing reference to Goldberg, "The idea that you can use due process for redistributive ends socially, that will be stable, was [an] astonishing assumption in [the] minds of litigators, and it didn't last very long." And Obama adds, "And it essentially has never happened."

Obama then gives an example of the redistributive road not taken: the 1973 case San Antonio School District v. Rodriguez. A group of parents asked the Supreme Court to find that Texas' method of school financing, which was based on local property taxes, violated their kids' fundamental right to education. Because their kids' schools were in a part of the state with a lower tax base, their schools got less money. In a different 5-to-4 lineup, the court turned the parents down. The Constitution didn't "explicitly or implicitly" provide for a right to education, the majority said—and Texas had not created a suspect class of poor students, which meant they had no right to due process. The state was free to fund schools unequally, as many still do. Obama says about Rodriguez that the court "basically slaps those kinds of claims down and says, you know what, we as a court have no power to examine issues of redistribution and wealth inequalities."

Maybe Obama is regretful about the way Rodriguez came out. Though he doesn't say so directly, that's a plausible reading, given his use of "slaps down" and his statement later that he's "not optimistic about bringing about major redistributive change through the courts." But as Orin Kerr points out on the Volokh Conspiracy, Obama is speaking more in descriptive terms than he is advocating a position, so it's hard to tell. If anything, he comes off, per usual, as the opposite of a fire breather—given the opportunity to sound off about the courts and economic justice, he instead seems muted.

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What's more, the idea that courts do have a role to play in the funding of schools gained a lot of traction after Rodriguez—in the state courts, as opposed to the federal ones. Sometimes, that is because state constitutions provided for a right to education. In some states, like California, judges instructed the state to take steps to equalize school funding from district to district. In others, like Kansas and Kentucky, and in ongoing litigation in Connecticut, the court decisions are framed in terms of adequacy of funding—making sure each district has enough, rather than the same amount. Either way, it's redistribution of what's become a rather routine sort. This is what Obama was talking about when he said in the radio interview, "Suddenly, a whole bunch of folks start bringing these claims in state court under state constitutions that call for equal educational opportunity, and you see state courts with mixed results being more responsive to it."

What comes through far more clearly in the interview is a tactical point: Obama thinks it's a mistake to rely too much on courts to further any broad agenda. He says, "I think one of the tragedies of the civil rights movement was that the civil rights movement became so court-focused. I think there was a tendency to lose track of the political and organizing activities on the ground that are able to bring about the coalitions of power through which you bring about redistributive change, and in some ways we still suffer from that." And then he continues, "Maybe I am showing my bias here as a legislator as well as a law professor, but you know … the institution just isn't structured that way."

This is a whole separate, bitter, ongoing fight in legal circles—over when to turn to courts as a means of change and when to turn to the legislature, which is directly accountable to the voters and so perhaps the safer and more stable route. It's a truism that conservatives favor legislative change and see the courts as an undemocratic end run around it. They especially think that about any push for "redistributive change," Obama's subject here. In this interview, Obama comes down on the traditionally conservative side, albeit for presumably different reasons. He thinks the civil rights movement misjudged the courts' utility—they were good for providing for a right to vote and for black people to sit with white people at a lunch counter, to use Obama's examples, but they're not good for deciding who's entitled to what government benefits or property rights. "Obama is with Bork on this," Cass Sunstein, an Obama adviser, told me, referring, of course, to the arch-conservative, famously not-confirmed-to-the-Supreme Court Judge Robert Bork.

OK, but if Obama doesn't think the courts will wave the magic wand of redistribution, isn't he still pulling for the legislature to wave it? This is where the McCain attack, in Sunstein's words, "is so ludicrous that to deny it makes one feel like one has come to crazy land." On the one hand, of course Obama is for redistribution. So is any politician, including John McCain, who favors a progressive income tax. Governments constantly take more from one group and give more to another. That's what Medicare is about, and the whole idea of funding public schools in the first place.

The McCain attack isn't about these broad and popular programs, of course. It's about the notion that Obama's "basic goal" is "taking money away from people who work for it and giving it to people who Barack Obama believes deserve it," in the words of McCain adviser Doug Holtz-Eakin. "Europeans call it socialism." For this—the Obama version of large-scale wealth distribution—there is no evidence. There is only his support for garden-variety social-welfare programs, like unemployment insurance and the Earned Income Tax Credit, a tax refund for low-income working people. "Of course it's not a surprise to say that Obama wants the EITC or to expand the unemployment insurance program, or that he's in favor of education reform that's going to cost some money and will give a decent education to people who don't have it," Sunstein says. "But we already knew that. And it's not socialism." True. But it doesn't make for much of an attack on the stump.