November 19, 2019

Could we live without the Supreme Court?

Anyone who has the opportunity to chat with Erwin Chemerinsky, as I recently did, will find him a gracious, affable and reasonable person — a real mensch. But if you read his latest book, “The Case Against the Supreme Court” (Viking), you will discover that he is capable of taking (and justifying) a radical, even revolutionary position about the third branch of government.

“It is important to ask directly the question, has the [U.S.] Supreme Court been a success or a failure?” Chemerinsky writes. “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.”

The founding dean of the law school at UC Irvine, Chemerinsky is one of America’s most influential constitutional scholars and a courtroom lawyer of long experience; he is also fully capable of naming names and citing specific cases that he regards as miscarriages of justice. He focuses on cases that constitute what he calls “a horrific abuse of power,” including the sanctioning of human slavery, the sterilization of the “feeble-minded” and the internment of Japanese-Americans during wartime, among others.

His over-arching criticism of the Supreme Court, however, transcends the facts of any single case. “Throughout American history, the Court usually has been on the side of the powerful —government and business — at the expense of the individuals,” he concludes. “In times of crisis, when the passions of the moment have led to laws that compromise basic rights, the Court has failed to enforce the Constitution.” 

Chemerinsky even holds the much-praised Warren Court to account for its failings. He concedes that the decisions of the Warren Court in the areas of race, voting rights and criminal justice were a proper exercise of the “core mission” of the Supreme Court, which he defines as “enforcing the Constitution to protect minorities in areas where otherwise the Constitution would have been unenforced.” But he insists that “it did not do all that it could have or all that was necessary,” and “its failure to do so has serious adverse consequences to this day.”

Similarly, he is willing to credit the current Roberts Court with what he regards as an appropriate exercise of its authority, and he praises the ruling in the Defense of Marriage Act case as an example of how the Supreme Court ought to perform “its proper constitutional role” by protecting a minority from discrimination. By contrast, he condemns the ruling in the 2000 election case of Bush v. Gore, which short-circuited the counting of ballots in Florida and essentially selected George W. Bush as president; Chemerinsky calls this “among the worst decisions in history.” He also singles out the Citizens United decision, which held that “corporations have the same First Amendment rights as individuals and that restrictions on corporate spending in election campaigns are unconstitutional,” as a fundamental mistake with far-reaching consequences.

Chemerinsky sees “judicial activism,” a charge that is usually made by conservatives when the Supreme Court acts to protect the rights of minorities, used with equal force by the Roberts Court. “The deference to the democratic process so often preached by conservatives in attacking liberal rulings protecting rights was nowhere in evidence as the conservative majority struck down restrictions on corporate spending that had existed for decades.” 

What does Chemerinsky prescribe as a cure for such afflictions? He considers the case for taking away the Supreme Court’s power of judicial review, that is, the authority of the Supreme Court “to say what the law is.” Judicial review appears nowhere in the Constitution and was first asserted by the Supreme Court itself in the hoary 1803 case of Marbury v. Madison. Ever since that case was decided, the Supreme Court has repeatedly acted to declare whether a legislative enactment or a presidential order is or isn’t constitutional. Chemerinsky points out that democracy can live without judicial review, citing Great Britain and the Netherlands as examples. But, he concludes, “I imagine a world without judicial review and realize it would be much worse.”

Instead, he offers a list of “reforms that might make a difference.”  

I hasten to say that “The Case Against the Supreme Court,” from beginning to end, is presented with absolute clarity, forceful argument and the same effervescence of thought that Chemerinsky displays in person. But it is also true that his chapter on “Changing the Court” consists of technical fixes that seem rather less dramatic than the rest of the book — merit selection of judges, term limits rather than life tenure and fixes to the congressional process by which judges are confirmed, and even such subtleties as changing the way the Supreme Court communicates with its constituencies. Even so, Chemerinsky deserves praise for bringing his theoretical and historical arguments into the here and now.

“A mystique surrounds the Court, one that for too long has shielded it from the criticism and scrutiny it deserves,” he writes. To his credit, Chemerinsky has ripped aside the veil and shown us the inner workings of the Supreme Court, and he challenges us to consider, perhaps for the first time, whether we need the High Court at all.