SEPTEMBER 24, 2014
ERWIN CHEMERINSKY has a lot of nerve. Thank goodness. If more scholars had his intellectual power, passion, and pluck, the country would be better off.
In a more perfect Union, his new book, The Case Against the Supreme Court, would be a catalyst for fundamentally changing the nation’s most important and — the author argues convincingly — least democratic institution.
“A mystique surrounds the Court, one that for too long has shielded it from the criticism and scrutiny it deserves,” Chemerinsky writes. “It is time to realize that the institution we have so long revered is flawed and that change is essential.”
True believers, former clerks, fans of Chief Justice John Roberts and his fellow justices, and those who worship the Supreme Court itself should prepare to be offended. After 40 years studying, writing, teaching, and practicing before the Court, Chemerinsky has not exactly become mad as hell. But he is nevertheless not taking it any longer. Instead, he has become that most dangerous of fellows — the brilliant, disillusioned idealist who knows what he’s talking about; a man committed to change and not incrementally.
“Has the Supreme Court been a success or a failure?” he asks. “My conclusion is the thesis of this book: The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments.” As the title also makes clear, the book is an indictment. And while the charges are never explicitly stated, they include the crimes, or at least many of the elements of, corruption, concealment, fraud, perjury, and having “sanctioned terrible injustices.”
Divided into three sections, the book begins with a recitation of past crimes, the Supreme Court’s biggest flops, cases “where virtually everyone today — liberal and conservative alike — can agree that the Court was wrong”: “wrong” meaning that the Court failed to fulfill its preeminent purposes, which are “to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities.”
Chemerinsky has a mountain of evidence from which to draw. The Court’s past is rife with depressing and undeniable examples. Oliver Wendell Holmes’s oft-cited, infamous crack about three generations of imbeciles being enough while upholding Virginia’s sterilization laws never loses its power to disgust.
Nor do the Court’s holdings in regard to internment of Japanese Americans during World War II, the failure to protect unpopular public or objectively private speech in times of crises (from the McCarthy era through post-9/11 America), or, of course, the Court’s long history of inaction on the issue of slavery.
That other branches of government also failed in times of crisis is no excuse; after all, the Court’s role as a check on government power — its prestige and the life tenure of its members — demands that it “stand up to these pressures and […] enforce the Constitution, even when it is unpopular to do so.” Instead the Court has often choked, knuckled under pressure, or been too deaf, blind, or dumb to do the right thing. That the Obama administration has done nothing to close Guantanamo is bad. That “the Court has simply lost interest in the Guantánamo detainees and the difficult legal issues raised by indefinite imprisonment of individuals without trial” is worse.
No reasonable person can argue with the historical record. Nor can they accuse Chemerinsky of playing favorites. Justices on the right and left have failed, including the beloved Warren Court, which the author chides for lacking the courage or foresight to extend true equality under the law. Furthermore, in cases involving government efforts to increase diversity, and access to public benefits, the Court has more often than not stood in the way of progress. And nowhere has this been clearer than in the civil rights arena.
“In all of these instances,” Chemerinsky writes, after a list of such cases, “society would have been better off without a Supreme Court; in each area, the Court kept legislatures from doing more to advance racial equality.” He concludes that “the Court, overall, has done much more harm than good with regard to race.”
More controversial is Chemerinsky’s analysis of the current institution. But it is no less substantiated by the facts. The author assesses the Roberts Court on three major areas, namely “its decisions concerning regulation of business, its rulings regarding the ability to sue government entities and government officers when they violate the Constitution, and its cases affecting the political process.”
He cites recent Court rulings that limit class action suits against providers of cell phone services, that prohibit consumers from suing manufacturers of generic drugs for harm caused by their product, and that prevent employees from suing corporations for employment discrimination. In doing so, Chemerinsky makes a clear and convincing case that the Roberts Court has repeatedly ignored concepts of deference to the legislative branch, consideration of legislative intent, and “nullified Congress’s purpose by narrowly interpreting the federal statutes” that it simply did not like or agree with. Furthermore, by granting ever-greater immunity from lawsuits to various government agencies and officers, the Roberts Court has undermined the Constitution’s overall intent to hold the government accountable for its actions.
As for guaranteeing the integrity of the political process, Chemerinsky does more than merely invoke the cursed words Bush v. Gore. Instead, he brings a fresh approach to the case. Leaving the partisan issues aside, he makes the most cogent argument I’ve yet read that it “was a bad decision, first, because the Court clearly had no business hearing and deciding the case” because it was not ready for judicial review, because it involved a political question, which the Court traditionally refuses to hear, and because it violated basic tenets of federalism by ending the Florida recount when it did.
So what is to be done?
Here the book is the most intriguing. Chemerinsky considers everything from a Constitutional amendment to strip the Court of its power of judicial review, to replacing life tenure with single terms of 18 years on the bench. A number of scholars, including the late Professor James MacGregor Burns, argue that since there is nothing in the Constitution giving the Court the power to declare laws and executive actions unconstitutional, the Court ought to be stripped of the power once and for all. After all, why should nine unelected life-termers have the right to thwart the will of the nation’s democratic leaders? Other nations, including the Netherlands, have Constitutions that explicitly prohibit the courts from striking down government actions. Proponents of the status quo on the left and right, who disagree on everything else except that the Supreme Court should forever be the final arbitrator of what is Constitutional, would all have to rethink their positions.
Chemerinsky does not go as far as to support eliminating the power of judicial review. But he makes a convincing case that the way the current Supreme Court goes about its business doesn’t work now, hasn’t worked for a long time, and won’t work without reform. A good place to start, and the strongest, most defensible of Chemerinsky’s reform proposals, is also arguably the most important and the simplest to implement. And there is nothing in it which either the left or right can possibly disagree with: the Court should tell us what it is doing and why. “At all four stages of the [Court’s case] process,” Chemerinsky writes, “taking and denying cases, hearing cases, releasing decisions, and writing opinions — the Supreme Court fails to effectively communicate.” Let the public see what the Court does and how it does it. Do a better job making the Court’s decisions clearer and easier to read. And broadcast the Court’s arguments.
Critics will no doubt accuse Chemerinsky of cherry-picking examples, of drawing conclusions from a relatively small number of cases, of only superficially analyzing the Court’s vast body of work. His supporters, on the other hand, might suggest that he fails to identify a number of other areas where the Court has failed, for example, in the area of gender equality, a point Justice Ruth Bader Ginsburg made after the book went to print.
If anything, events have only served to make the author’s point stronger. In cases that appeared after his book went to press, the Court issued rulings that failed to protect religious minorities from having to hear Christian prayers before city council meetings and allowed corporations to deny health benefits to its employees seeking certain forms of contraception.
What I admire most about the book is that Chemerinsky wrote it at all. Reformation of rotten institutions is often a brutal, even bloody business. Yet it often begins with the publishing of a document. The most famous examples, Martin Luther’s Ninety-Five Theses, Karl Marx’s Communist Manifesto, Adolf Hitler’s Mein Kampf: all have left trails of blood. From The Federalist Papers on — in writings about temperance, education, women’s rights, abolition — the call to reform even the most fundamental social practices and institutions has always been an American ideal. Different as their goals have been, the origin of every one of these reform movements can be traced to the written word, to a founding document. One can only hope this will be the fate of Chemerinsky’s book.
He knows he’ll be accused of partisanship, or of being a sore loser over cases argued and lost before the Court. A defense lawyer by temperament and practice, he manfully shoulders the prosecutor’s burden, which is no surprise. The book has been a lifetime in the making. Filled with an insider’s understanding of how theories on jurisprudence differ from Supreme Court practice, it is balanced by the gravitas of a singular legal mind. The first dean of the upstart University of California, Irvine Law School, he is the left’s most prolific and insightful Constitutional scholar.
Fans of Chemerinsky — and I am decidedly one — sometimes fear that his calm voice and well-structured arguments will get lost in the din of these loud and impatient times. Kind in character, courtly in demeanor, he is the opposite of a brawler, a throwback to a more genteel world of discourse, at a time when the nonstop cable news cycle and the blather of countless radio talk shows have turned the marketplace of ideas into a cacophonous bazaar. Politics has always been a partisan activity, but now it is also profitable, especially for a growing class of wise guys — paid consultants and media buyers — and it extends even to discussions of the Supreme Court. Thus what passes for analysis is too often sloganeering, scholars from this think tank or that law school facing off, not so much debating one another as preaching to their own choirs.
Chemerinsky has always stood outside this chaos. Nonetheless, his soft-spoken style belies a killer’s instinct for the jugular. I’ve debated Chemerinsky in public settings twice. I know what death by a hundred small, apologetic cuts feels like. He wields a velvet scalpel. He is capable of slicing up an opponent’s argument without leaving scars, but without leaving the argument standing, either.
It is only fair and right to judge the strength of Chemerinsky’s book on the basis of how well he makes or doesn’t make his case. While he may not necessarily convict the Court beyond a reasonable doubt, he sustains many of the charges he makes by a preponderance of the evidence. Brilliant, thought provoking, disturbing, and enraging, the book could be the first shot in a battle to save the Supreme Court from what he believes is its most intractable foe — itself.