Erwin Chemerinsky, The Case Against the Supreme Court — March 19, 2016

Erwin Chemerinsky, The Case Against the Supreme Court

The basic question that begins this book (and apparently begins Chemerinsky’s classes at UC-Irvine) is: why even bother with a Supreme Court to begin with? What role does the Court fill? Chemerinsky’s answer: courts protect the powerless, who would otherwise have no advocates within a majoritarian legislative system. The Court has failed, then, if it has failed to protect the rights of powerless minorities. Chemerinsky shows, through example after heartbreaking example, that the Court has consistently, through its two-plus centuries of existence, sided with the powerful against the powerless. It has done this even when its hand has not been forced. Often it has done this in egregious ways — as when Oliver Wendell Holmes, upholding the right of the state to forcibly sterilize its citizens, wrote that “Three generations of imbeciles are enough.”

The book is divided into three eras. First there’s the period when we all know that the Court was the voice of the powerful against the powerless, spanning Dred Scott to Lochner. Next is the era that would be the most obvious counterexample to Chemerinsky’s thesis, namely the Warren Court that did so much to expand civil rights in the 1950s and 1960s. Chemerinsky shows that the Warren Court could have done much more than it did: it took a full decade to follow up on enforcing its own decision in Brown v. Board of Education, by which time the composition of the country had swung back in the direction of the Nixon counterrevolution. By the middle of the 1970s it essentially halted the progress of school desegregation, ruling that segregation was only unconstitutional if that was the explicit goal of the law; de facto segregation was allowed.

Throughout, Chemerinsky emphasizes that the law itself does not restrain the court; its errors are unforced, and they all point in the same direction, namely toward comforting the comfortable and afflicting the afflicted — as when he writes that the Court’s reading of equal protection is “simultaneously cramped when racial minorities attempt to use it to challenge discrimination and expansive when whites use it to object to affirmative action.”

Chemerinsky’s command of the law is, of course, quite a lot deeper than mine; he’s the author of a leading text on Constitutional law. So I hesitate to question his assertions about what’s “obviously” legally true or false. His description of the Morrison case, though, striking down portions of the Violence Against Women Act as an unconstitutional overreach, was not convincing. Chemerinsky writes that VAWA was justified by Congress’s interstate-commerce power, because “Congress found that gender-motivated violence costs the American economy billions of dollars a year and is a substantial constraint on freedom of travel by women throughout the country.” That may well be true; but, looking at the law from the outside in, this feels like the sort of justification that could be attached to any and every law. What, exactly, wouldn’t the commerce clause make constitutional, by this argument? Likewise for the famous commerce-clause in U.S. v. Lopez. Again, I’m not asserting that Chemerinsky is wrong, or that these laws are obviously unconstitutional; it’s just a legal argument that Chemerinsky needs to spend more time justifying to a non-legal audience.

And if the legal arguments in his favor are as obvious as Chemerinsky makes them out to be, then his statement late in the book that “rarely, if ever, does the Court hear a case in which there are not reasonable arguments on each side” is a bit hard to believe.

That said, most of the examples that Chemerinsky cites — and he cites example after example, with the steady, relentless energy of a metronome — do seem absurd, as when he notes that “If you are injured by a generic prescription drug — even horribly injured — you cannot sue the maker of the drug.” (See the New York Times on this case, namely Mutual Pharmaceutical v. Bartlett. Chemerinsky argues persuasively that this decision was a horrifying perversion of Congress’s intent when it passed the Hatch-Waxman Act.

So what is to be done? If the Court can be counted on to always reflect the interests of the powerful, then why bother with the Court? Chemerinsky says that there’s a strain of legal thought which advocates removing judicial review (i.e., the Court’s power to declare legislation unconstitutional) altogether. Chemerinsky won’t go that far because, for many otherwise powerless people, it’s either the Court or nothing. Removing judicial review wouldn’t help the powerless; it could only hard them. Chemerinsky’s preferred solutions include term limits for Justices, so that Justices nominated decades earlier don’t leave the Court trailing decades behind the society it inhabits. Of course, this is no guarantee that the Court will thereby become more progressive: term limits taking effect during the Nixon or Reagan administrations would have unwound some of the victories of the Warren Court.

His other solutions include the Court’s communicating more clearly with the public, for instance by broadcasting oral arguments as they happen, and by understanding the various audiences (other lawyers, academics, the general public) who read its decisions. Maybe most importantly, Chemerinsky wants the public to correct its mistaken understanding of how the Court works, and he wants nominees to stop playing the games they play during their confirmation hearings: judges are not like baseball umpires. They do not merely interpret the law; they create the law, in cases where reasonable people can disagree on what the law is. Chemerinsky believes that if people had a correct understanding of how the law is made, they would understand that protecting the powerless is a choice — a choice that the Court has, regrettably often, failed to make.