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.)

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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