Wednesday, July 29, 2015

The Case Against the Supreme Court by Erwin Chemerinsky

The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments.  This is not easy for me to conclude or say.  Almost forty years ago, I decided to go to law school because I believed that law was the most powerful tool for social change and that the Supreme Court was the primary institution in society that existed to stop discrimination and to protect people's rights.  In a society filled with inequalities and injustices, the civil rights lawyers of the 1950s and '60s were the model for what I wanted to be.

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.

Dean Chemerinsky
So I feel that Chemerinsky does not give enough credit to the fact that the decisions he discusses are difficult, contain competing values, and include many tensions within the Constitution itself.  So, for his thesis to work (for me), it is not enough to say that the Court is wrong about some decisions; the decisions must be so wrong that no justice could have, in good faith, reached the decision.  However, (obviously), justices have, and I feel have done so in good faith.

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
Chemerinksy offers two solutions of note: 18-year term limits and closer Senate scrutiny and more openness from judicial candidates during confirmation hearings.  I don't know how to feel about term limits.  I'll say this, though: I'm not sure what problem it is meant to serve other than ensuring the Supreme Court more closely reflects which party wins presidential elections.  Because I view life appointments as a way of guaranteeing independence, which I support, I am reluctant to say our justices should be term limited.  Nonetheless, I think closer scrutiny of judicial ideology would be desirable.  Of course people grow and change and develop over time.  Still, I think it is only fair for us to be able to hear what candidates for the Supreme Court believe their role in the Constitutional system will be.  I don't think it would require them to pre-decide cases; I think it would simply require everyone to be more honest about the judicial role and what considerations play into it.

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.


Christopher said...

What about Loving? What about Lawrence v Texas? Were they just too late to be praiseworthy?

Randy said...

Loving would fit into the "Warren Court" era; Chemerinsky is generally critical of the Warren Court because he feels they didn't do enough.

As for Lawrence v. Texas, or too recently for this book, Obergefell, Chemerinsky discusses that sometimes the Court gets things right. However, he views these as the exception rather than the rule, and so discounts their importance. And he faults the Court for taking too long. I can't remember if he specifically mentions Bowers v. Hardwick (the 1986 case which Lawrence overruled), but I think he'd point out that for 20 years, the Supreme Court sanctioned sodomy prosecutions and we might reasonably question whether that's okay.

It's hard for me to know how to feel about this: I think as a society we learn things and the factual predicates for how we feel about moral questions changes over time. Which is to say, while we might all agree the Court was wrong before, we have to make some allowances for the fact that they didn't know any better--not as an excuse, but as a way of understanding what they were doing.

Christopher said...

I'm skeptical of treating the Court as if it should be the vanguard of human morality. Re: Obergefell, the Supreme Court legalized gay marriage only two years after a majority of Americans thought gay marriage should be legal. It would be nice if the Court had ruled differently in 1986 but I'm not sure the problem is with the Court rather than American society and moral understanding as a whole.