I'm sympathetic to Young-Chemerinksy's view about the Supreme Court: I myself once bought into the myth of the Supreme Court as the main institution to fight injustice (past tense because not sure how I feel right now). So, I understand Dean Chemerinsky's starting point: does the Supreme Court live up to our expectations of it?
Chemerinksy's unequivocal answer is no. For all of the United States's history, the Supreme Court has, according to him, failed every major test. Every time the Court was presented with a difficult case for which the Court should have fought injustice, the Court failed to. Chemerinsky, thus, concludes that the Supreme Court is a failed institution.
He documents these failures in three major historical areas (protecting minorities, enforcing the Constitution during times of crisis, and property/states' rights), two contemporary areas (employers/employees/consumers and abuses of governmental power), and discusses counterpoints (What about the Warren Court? Is the Roberts Court really that bad?), and offers some possible solutions.
I can summarize his argument succinctly: he disagrees with a lot of Supreme Court decisions. The Warren Court did not do as much as it should have. The Roberts Court is really that bad. And, we need to term limit our justices and question their ideology during confirmation hearings.
I have only one major problem with Chemerinsky's argument. His disagreement with major Court decisions does not acknowledge that his own view is subject to reasonable disagreement. For example, he believes the Korematsu decision (Japanese internment camps) was wrong and that everyone can agree the decision is wrong. Although, I also agree the decision was wrong, I think many people feel it was the right decision, both at the time of the decision and today. During World War II, there was an intense fear of Japanese Americans---that we now know the fear to be unfounded, doesn't change that they thought the fear was founded---and so the Court allowed the internment of them. This decision was based on a belief that the Court should not interfere with the executive branch during times of war. No Court has since overruled the decision because this is still a widely held belief about the relationship between the Court and the executive branch. Again, I disagree with the Korematsu decision; my point is only that it's subject to reasonable disagreement.
Chemerinsky does not accuse the justices of bad faith. However, he thinks they are simply applying their discretion to cases, which in turn is informed by their ideology. Though I think this is accurate, in terms of concluding there is something wrong with the Court, his explanation is unsatisfying. If justices are merely applying their ideology, then the only basis for criticizing their decisions must be based on a criticism of their ideology. But ideology is itself subject to reasonable disagreement. So it feels as though Chemerinsky is criticizing the Court for not following his ideology. This, I feel, is less an issue with the Court as an institution and more an issue with each individual Justice. I don't see this as a problem with the Court because disagreement over ideology is an inherent part of our political and justice systems.
|Am I the only one who sees a |
There's a lot of meat to this book, and so I would tend to recommend it. It reads more for non-lawyers (and honestly, for a lawyer, sometimes the explanations of basic constitutional concepts was...tedious; no fault to Chemerinsky because I understand he was writing for a broader audience). Still, though, I think many readers (whether lawyer or not) will find that the book feels like a series of disagreements with the Court's decisions.