September 23, 2019

A conversation with Erwin Chemerinsky

Jonathan Kirsch: Let me begin with a quote from “The Case Against the Supreme Court.” You write: “From the outset, in writing this book, I have been concerned that it would be criticized as a liberal’s whining that the Court’s decisions have not been liberal enough.” What apprehensions did you have, if any, about the reception to your book? And did those apprehensions turn out to be well founded? 

Erwin Chemerinsky: Like any author, my largest fear is that no one will pay any attention to the book. But one has to say what one believes is right. 

JK: You concede in your book that you have not fared well in the cases you have handled in the Supreme Court. Do you think that the criticisms in your book will make it even harder when you next appear before the Court?

EC: I don’t think the justices will pay much attention to this book. If they do, I think they will agree with a lot of what I have to say. 

JK: Traditionally, the Supreme Court included a Jewish seat. Does the Jewish seat survive in any sense? 

EC: The first Jewish justices — [Louis] Brandeis, [Benjamin N.] Cardozo and [Felix] Frankfurter — are among the most renowned in history, but I think the Jewish seat is a dead letter. It ended when Abe Fortas left the Court in 1969, and Nixon did not replace him with a Jewish justice. No Jewish justice served [again] until Justice [Ruth Bader] Ginsburg was appointed in 1993. Now there are three Jews and six Catholics on the Court, and it’s hard to speculate what that will mean.

JK: Your principal argument is that the Court has failed to protect the individual against the powerful, both in government and business. Does this reflect an ideological stance rather than a judicial philosophy?

EC: It’s not ideological. The purpose of the Constitution is pre-eminently to protect minorities of all sorts. The majority does not need the Constitution to protect itself; the majority can protect itself through the judicial process.

JK: Do you think the program you suggest stands any realistic chance of being adopted?

EC: I think so, at least for some of them. For example, I think there is a constituency to apply ethical rules to Supreme Court appointees and a strong desire to change the way the Supreme Court communicates by allowing cameras in the courtroom. Term limits has the broadest support — if Rick Perry and I can agree on that, it shows the scope of the constituency. But it would take a constitutional amendment, and that makes it far less likely.

JK: Do you despair of achieving the primary goal you advocate, that is, the appointment of a majority of justices who embrace the notion of favoring the rights of individuals above the prerogatives of the wealthy and powerful?

EC: The honest answer is, I don’t know. Had [Al] Gore or [John] Kerry been president in 2005, when [William] Rehnquist and [Sandra Day] O’Connor were replaced, constitutional law would be vastly different today. It’s possible to imagine a Democrat winning in 2016, but it’s also possible to imagine a Republican winning, which would result in a conservative Court for the rest of our lifetimes.