Vol. 26 No. 3 (July 2016) pp. 47-49
THE CASE AGAINST THE SUPREME COURT, by Erwin Chemerinsky. New York: Viking Penguin, 2014. 400pp. Cloth $30.00. ISBN: 9780670026425. Paper $18.00. ISBN: 9780143128007.
Reviewed by Gary E. Bugh, Department of Political Science, Texas A&M University-Texarkana. Email: firstname.lastname@example.org.
In THE CASE AGAINST THE SUPREME COURT, Erwin Chemerinsky presents a scathing critique of the Supreme Court for failing to carry out its most important responsibilities at critical moments. What are these functions, where do they come from, why has the Court inadequately performed them, and what could help the Court do a better job? Chemerinsky asserts “that the two preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities” (p. 10). He argues that these obligations—as well as the Supreme Court’s history of unsuccessfully fulfilling them when they were most needed—derive from the Constitution. However, rather than amend the Constitution or remove judicial review from the courts, his proposed solution for the Court’s incompetency is to enact several statutory-level reforms.
While the Constitution does not expressly describe the Court’s two primary duties, Chemerinsky holds that it logically supports them. He explains that the design of the Constitution—its separation of powers, civil liberties protections, and near invulnerability from alteration—is meant keep an impassioned majority from harming minority rights and the Constitution’s “basic values” (p. 9). The Constitution also guarantees justices’ tenure and salaries, further insulating the Court from the majority. Consequently, “[j]udges with these protections, it always has been hoped, will be more likely to safeguard minorities and enforce the Constitution against repressive desires than government officials who are elected and are accountable to the voters” (p. 10).
In reviewing different historical and contemporary areas of constitutional law, Chemerinsky lays bare the Court’s record of repeatedly failing to take a stand for constitutional rights and principles. The history of the Supreme Court is characterized by decades-long support for government-sanctioned slavery, racial segregation, corporate favoritism, and suppression of speech during times of crisis. “Throughout American history,” Chemerinsky writes, “the Court usually has been on the side of the powerful—government and business—at the expense of individuals whom the Constitution is designed to protect” (p. 10). He acknowledges that the Court has occasionally performed admirably, as in BROWN V. BOARD OF EDUCATION (1954), but such instances are rare and generally limited. Even the Warren Court does not escape Chemerinsky’s critique, and he details throughout Chapter 4 how “it did so much less than it needed to and should have done, even in the areas of its greatest accomplishments” (p. 155). In other chapters he eviscerates the current Roberts Court, describing how it favors the powerful over citizens in several areas from generic drug manufacturers to voting rights.
The vague and broad language of the Constitution, Chemerinsky argues, is behind the Court’s inability to fulfill its responsibilities. At one level, he observes that the Constitution’s general language makes it possible for Americans of different ideologies to consent to the constitutional system. However, he maintains that at the level of the Court, it invites justices to rely not on the law or text of the Constitution when making decisions, but “on their own values, views, and prejudices” (p. 10). Problematic with the justices having so much leeway is that they have historically swung in [*48] favor of elite preferences. This is no wonder, he continues, because most justices are among the elite. As he elaborates, “it is striking how similar the educational backgrounds of the justices are and how many of them come from relatively privileged families” (p. 294). The justices’ reliance on “making a value choice” explains the Court’s inconsistent use of standards that it could use to protect minority rights and limited representative government, such as “compelling government interest” (p. 339).
However, there may be more to the explanation of why the Court’s history is not one of fighting for equal citizenship and constitutional values. Expecting the Court to be the leading defender of citizen rights and government restraints may not be realistic. After all, it is part of government. Chemerinsky leaves out the important role that mass movements have played in pressuring government to uphold civil rights and civil liberties. In his argument, the relationship works the other way around, with an independent Court driving popular movements. He even claims at one point that “[t]he Court’s desegregation decisions helped spur the civil rights movement and the adoption of landmark civil rights laws in the 1960s” (p. 53). Yet, Chemerinsky has some difficulty holding to his autonomous view of the Court, mentioning that “the justices live in society and thus are likely to reflect its attitudes and values at any point in time,” and agreeing with Mark Tushnet’s (1999) argument that the courts tend to go along with “the dominant national political coalition” (pp. 293–94). Nevertheless, Chemerinsky’s defense of his thesis presents an alternative to political perspectives of the Court, including Tushnet’s (2010) regime-centered theory. It also provides many valuable insights.
The discussion of the Constitution’s prevention of majority rule in Chapter 8 serves as a counter to the view of Alexander Bickel (1962), John Hart Ely (1980), and some other scholars that citizens govern through majority rule and therefore judicial review undemocratically overrides the will of the people. Chemerinsky explains that the U.S. constitutional order is in reality designed to restrain the majority, reminding the reader that “[t]he framers openly and explicitly distrusted majority rule; virtually every government institution they created had strong anti-majoritarian features” (p. 290). Positioning himself against scholars arguing for “popular constitutionalism,” Chemerinsky holds that “the United States is not a democracy if that term is defined as majority rule. Rather it is a constitutional democracy, where majority rule exists so long as it is consistent with the Constitution. In this way, judicial review enforcing the Constitution is consistent with democracy once the term is properly understood” (p. 291). For Chemerinsky, the Court is the linchpin of an entire scheme that is supposed to prevent the majority from harming minorities and the Constitution. However, it has failed.
Chemerinsky’s overall recommendation to address the Court’s inability to faithfully protect constitutional rights and principles is to enact several reforms. Before presenting his list of suggested changes to make the Supreme Court more a friend of citizens than of the powerful, he devotes a chapter to the possibility of eliminating judicial review from the federal courts. Chemerinsky concludes that the courts should not be stripped of this power. While it has not consistently done so, he reasons that the Court has at times used judicial review to defend minority rights and constitutional basics. Instead of abolishing judicial review, Chemerinsky suggests many smaller reforms that recognize the human and political aspects of the Supreme Court, including clarification of the Court’s duties, merit selection of justices, judicial nominee ideological statements, term limits, improved Court communications (encompassing several reforms), post-argument briefs, and rigid ethical requirements and recusal procedures. Among these, only term limits might require a constitutional amendment, though Chemerinsky notes that some scholars question this contention.
Returning to the Court’s two major functions, Chemerinsky does not reference anyone when asserting that the Court is expected above all else to guard minorities and the Constitution. However, others have presented such purposes of the Court, perhaps most notably Justice Stone [*49] in Footnote Four of UNITED STATES V. CAROLENE PRODUCTS (1938). A few other justices have made similar declarations in even earlier cases. For example, in BOYD V. UNITED STATES (1886), Justice Bradley wrote that “[i]t is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon” (p. 635). In WEEKS V. UNITED STATES (1914), Justice Day stated that “the courts … are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of … fundamental rights” (p. 392). Since Chemerinsky is criticizing the Court, it is not surprising that he does not mention the few times justices have given analogous descriptions of what the federal courts should do. Yet, providing some historical agreement may have strengthened what he puts forward as the Court’s principal obligations.
In Chemerinsky’s critical assessment of the Supreme Court, the constitutional system designed to inhibit an oppressive majority from controlling government and changing the Constitution necessarily includes a federal judiciary that protects minority rights and constitutional values. While the Court has not reliably carried out these responsibilities, it has the potential to do so. Taking some of Chemerinsky’s proposed reforms seriously may be a step toward helping the Court work as one might hope.
Bickel, Alexander M. 1962. THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS. Indianapolis, IN: Bobbs-Merrill Co.
Ely, John Hart. 1980. DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW. Cambridge, MA: Harvard University Press.
Tushnet, Mark. 1999. TAKING THE CONSTITUTION AWAY FROM THE COURTS. Princeton, NJ: Princeton University Press.
Tushnet, Mark. 2010. WHY THE CONSTITUTION MATTERS. New Haven, CT: Yale University Press.
BOYD V. UNITED STATES, 116 U.S. 616 (1886).
BROWN V. BOARD OF EDUCATION OF TOPEKA, 347 U.S. 483 (1954).
UNITED STATES V. CAROLENE PRODUCTS CO., 304 U.S. 144 (1938).
WEEKS V. UNITED STATES, 232 U.S. 383 (1914).
© Copyright 2016 by author, Gary E. Bugh.