This Article examines the major Supreme Court rulings since the late 1960s that have directly addressed Aid to Families with Dependent Children (AFDC), commonly known as welfare. The Supreme Court decided cases, such as King v. Smith, Shapiro v. Thompson, and Goldberg v. Kelly, in favor of welfare recipients. The outcomes of these cases suggest that while the Supreme Court viewed welfare policy as a negotiation between federal and state governments, it reserved a special role for the judicial branch in protecting equal rights. The judicial understanding of the relationship between federal and state government power within welfare policy ranged from “cooperative federalism,” (expanding powers of the national government in areas traditionally left to the states) to fiscal conservatism (privileging state power and proffering a hands-off approach). These conceptual rubrics do not follow a linear narrative nor offer a story of change over time; instead they are competing approaches that can be implemented by the Supreme Court simultaneously. While the historical arch from the Civil Rights Era to the present normally presents a story of expanded liberties and freedoms to the socially disenfranchised, the lens of the Supreme Court welfare decisions narrates a much different story. Instead, we see the devolution of racial liberalism, the intensification and expansion of poverty, and the rise of social conservatism so familiar by the mid-1980s. Here, black women became both the symbolic scapegoat and the site of social policy surveillance. At the apex of this symbolic/social policy convergence were national attacks on the stereotyped “welfare queen” in particular, and any redistribution of national resources to the poor, in general. Part I of this paper examines Supreme Court case law on welfare policy through the lens of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Part II surveys the Supreme Court case law on welfare policy through the lens of federalism. Finally, Part III reviews much of the same case law contrasted through the lens of fiscal conservatism. Through these lenses, it is clear that the seemingly value-neutral Supreme Court was not at all immune to the changing political landscape of the nation over the last forty years.
23 Wis. Women's L.J. 1 (2008)