Supreme Disappointment

Over the past couple years, I've read a few books about the U.S. Supreme Court, each with a different tone. There was the "insider exposé" that was The Brethren, the critique of originalism that was The Nine, and the more purely informative overview that was The Supremes' Greatest Hits. I've recently added another book to the list, this one largely critical of the institution itself: The Case Against the Supreme Court.

Author Erwin Chemerinsky is a law professor and practitioner, dean of the law program at the University of California, and attorney who has argued at the Supreme Court. He has steeped himself in constitutional law and the Supreme Court throughout his decades-long career. And over time, that has had the effect of transforming a reverence for the Court into a disillusionment with what he sees as its long history of failure.

Chemerinsky builds a fairly compelling case that the Supreme Court has rarely been a force for good in U.S. history, and that even when it has, it hasn't done as much as it could. He begins his argument with a sort of mission statement for the Court that few could quarrel with: the purpose of the federal court system -- and the Supreme Court above all -- is to look out for the little guy. The Court exists to enforce the protection of the individual's rights against unconstitutional overreach, be it from unthinking and unfeeling majorities or acts by the government itself.

He then parades an alarming litany of examples in which the Supreme Court grossly failed in this mission. Some are widely known, like the infamous Dred Scott decision that dissolved the Missouri Compromise and condoned slavery; and Plessy v. Ferguson, which upheld the "separate but equal" doctrine of segregation that would endure for decades. Still more cases were already known to me, and should be generally more well known than they are, like the shameful Korematsu decision that upheld forcing Japanese Americans into internment camps during World War II.

But there are so many more horrific decisions in Supreme Court history that I knew nothing about. The Court supported the forced sterilization of the mentally disabled. It upheld the Sedition Acts of World War I, seriously curtailing free speech. It struck down a law aimed at reducing child labor. It condoned McCarthyism. It voided numerous attempts to prevent corporate monopolies, and to establish a minimum wage. When given the chance to acknowledge the right of women to vote before the passage of the 19th Amendment, the Court did nothing. And it was so pro-slavery in the Civil War era that it even struck down Pennsylvania's attempt at a law which simply said "if you're coming to our state to take back your escaped slaves, we don't want you to use extreme force or violence."

Over several chapters, Chemerinsky presents dozens of cases that no serious person of any political conviction could defend as rightly decided. This was his aim -- to make a point that could be embraced by people of any political ideology. It's why he starts on the politically neutral ground of the more distant past. Later, he transitions to the present, showing that close analogies can be drawn between those past cases and more recent ones.

For a while, it seems as though Chemerinsky is on solid ground. He covers a case where the Court ruled that victims who were seriously harmed by a generic drug can't sue the manufacturer for damages -- even if the harm was caused by design defects, and even if that patient could have sued the manufacturer if they had been taking the brand name version of the same drug. He presents another case where a man, after 24 years in prison for a crime he didn't commit, was told by the Court that even though the prosecutor at his trial knowingly withheld evidence that would have proved his innocence, he could neither sue that prosecutor nor the city that employed him.

But Chemerinsky just can't help getting a few extra swipes in. After spending three-quarters of his book building an argument using cases that would seem unimpeachably wrong to anyone, he presents a chapter with the trolling title "Is the Roberts Court Really So Bad?" He examines Bush v. Gore (which wasn't even decided by the Roberts Court), Citizens United (the notorious campaign financing case), and Shelby County (the nearly-as-notorious Voting Rights Act case). And while I personally agree with his analysis of those cases, I suspect they're all too ideologically loaded to support his argument as powerfully as his other examples. I can easily imagine a conservative reader, who might have been gently persuaded by the bulk of the book, suddenly throwing it down in disgust. That's a shame, because the author has a solid underlying point. (And it's not like he lets the liberals off the hook either. One of his chapters argues that the Warren Court -- the one brief period in history where the Supreme Court was truly progressive -- was unclear even in the rulings celebrated today, such as in the school desegregation case of Brown v. Board of Education.)

What does Chemerinsky suggest be done about the Supreme Court? His concluding chapter presents a number of prescriptions for improving the institution. He suggests merit-based nominations -- something President Jimmy Carter did for his federal court appointments (a practice Ronald Reagan discontinued, and that no president since, Democrat or Republican, has reinstated). He suggests substantive confirmation hearings (rather than the "Kabuki" of the current process) and term limits (a notion he admits with shock he agrees on with Texas Republican Rick Perry). He also implores the Courtto improve its communications, something the Justices themselves could implement on their own.

Ultimately, Erwin Chemerinsky has written a solid book. It would be great if the people in positions with the power to change things would take heed of his arguments. But it is a shame that he undermines his presentation a bit with some unnecessary partisan digs. Overall, I give the book a B+.