The Case Against the Supreme Court

August 11, 2014
Chemerinsky, a constitutional scholar from the University of California, Irvine, offers an accessible, refreshingly candid, and no-holds-barred indictment of the Supreme Court. Chemerinsky crafts his argument based on past Court decisions that are universally deemed to be on the wrong side of history, and on a stinging analysis of the more recent judgments of the Rehnquist and Roberts Courts. His thesis is built on the analysis of an array of Court opinions that address fundamental issues in American society. Chemerinsky’s own opinions are direct and unambiguous. Among a long list of issues, he finds the Court wanting in its approach to the problems of racial equality and protecting the rights of citizens in times of crisis, and condemns the Roberts Court’s rulings on voting rights, campaign finance, and the rights of citizens to sue for redress for governmental misconduct. Chemerinsky’s evaluation of the famously liberal Warren Supreme Court is particularly interesting for his claim that “it could have and should have done so much more.” He is sensitive to the charge that his (correctly) perceived liberal bias will undercut his thesis and responds that many of the criticized opinions are wrong from any perspective, liberal or conservative. An insightful analysis that advances much to consider, especially in light of recent controversial opinions.

July 15, 2014
The dean of the School of Law at the University of California, Irvine, places our most revered governmental institution on trial and finds it deeply flawed.If, as Chemerinsky (The Conservative Assault on the Constitution, 2010, etc.) posits, the Supreme Court's two most important responsibilities are to protect the rights of minorities and to uphold the Constitution against the impulse of political majorities, it has too often failed. By these terms, he makes a convincing argument. He draws on a number of crucial (and, he insists, wrongly decided) cases from all eras and across many different areas of the law to demonstrate the court's dereliction. When it comes to race, the court has historically done more harm than good. In times of crisis-during war, in the wake of 9/11, etc.-the court has failed to restrain majorities, has allowed free speech to be trampled, and has permitted the wrongful detention, incarceration and internment of citizens. Instead of protecting employees and consumers or ensuring a path to recovery for the injured, the court has favored protecting property, freedom of contract and states' rights. Nor does the performance of the Warren-led court, far more in keeping with Chemerinsky's forthrightly acknowledged liberal politics, absolve the court of its many lapses. He reminds us that Warren's tenure was brief and argues that even in the areas of its greatest successes-voting rights, school desegregation, ensuring counsel for criminal defendants-the court did much less than was necessary. Needless to say, the Roberts-led court comes in for a shellacking. Taking hope from the stirring dissents contained in most of the especially important cases he cites, Chemerinsky rejects recent scholarly calls for the abolition of judicial review and offers instead a number of reforms designed to improve the court and return it to its proper mission.Though he strives mightily to be fair, Chemerinsky's analysis remains vulnerable to the charge he most fears: an inevitably biased critique, amounting merely to the complaint that "the Court's decisions have not been liberal enough."

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September 15, 2014
Harvard professor Chemerinsky takes a long view of the U.S. Supreme Court, concluding that overall it has failed to live up to its potential and expectations in areas of personal rights and freedom. Instead, the court has acted in favor of corporate or business interests at the expense of individual and minority rights. Reviewing rulings in times of crisis, as revealed in the Dred Scott and Plessy decisions, Chemerinksy has found the court wanting. Even the highly praised Brown decision raises concerns in the lack of guidance in enforcement. Similarly, rulings punishing dissenters during WWI and legalizing the internment of Japanese Americans during WWII support Chemerinsky's assertions of major failures by the court. Although he acknowledges the merits of the Warren court, the current Roberts court's protection of corporate interests, restrictions on consumer and employee rights, as well as overprotection of government at individual expense confirms his assessment. Still, he does not take as extreme a position as others in arguing for elimination of the court in this informative critique, which should appeal to a wide audience.(Reprinted with permission of Booklist, copyright 2014, American Library Association.)