The future chief justice John G. Roberts Jr. closed his prepared statement at his confirmation hearing before the Senate Judiciary Committee by invoking the image of the Supreme Court as the guardian of justice for the powerless. As a lawyer in private practice, Roberts recalled that whenever he appeared before the Supreme Court in a case against the government, he was confident that he could win if only he could convince the justices that he had the law on his side.
After his nine years in office, the Roberts Court’s record bears little resemblance to the heroic image that Roberts painted back then, according to the critical account in the new book The Case Against the Supreme Court. As constitutional law scholar Erwin Chemerinsky tells it, victories for the voiceless or powerless have been hard to come by from the Roberts Court.
The card-carrying civil libertarian dean of the University of California-Irvine School of Law details the current court’s familiar record of siding with businesses in cases brought by investors, customers, or employees and with the government in cases brought by victims of government abuse or overreach. But Chemerinsky has gone beyond the easy task for a liberal of railing against Roberts and the four other Republican-appointed justices in the usually reliable conservative majority.
Instead, Chemerinsky has prepared an advocate’s case against the Supreme Court not just for the past decade but throughout its 225-year history. “My claim,” Chemerinsky writes even while acknowledging the court’s positive accomplishments, “is that the Court has often failed where and when it is most needed.”
After making this bold claim, however, Chemerinsky backs away from bold proposals such as eliminating judicial review in hopes that the political branches would be impelled to take their constitutional responsibilities more seriously. Instead, he endorses a laundry-list of worthy changes that he hopes would somehow lead the court to take its rights-protecting responsibilities more seriously, even at times of maximum stress.
Chemerinsky writes with the pain of a jilted lover. He entered law school in the 1970s with the Warren Court’s record fresh in mind, confident in the courts’ ability to effect social justice. Forty years later, however, he sees the 15-year Warren Court era as a blip and its rulings as less ambitious than they could have been and needed to be.
The bill of particulars against the court includes the great historic mistakes that will be familiar even to people with only a passing knowledge of American history. The slave-owning majority of the Supreme Court of the 1850s reduced African Americans to non-persons in the infamous Dred Scott case and threw out Congress’s attempt to keep slavery out of the newly settled territories. The court upheld racial segregation in Plessy v. Ferguson (1897), with only one justice in dissent. Five decades later, the court upheld without apology the World War II internment of Japanese Americans in the equally infamous decision of Korematsu v. United States (1944).
The list of historic disappointments is much longer. Chemerinsky opens with Buck v. Bell (1927), the 8-1 decision authored by the great justice Oliver Wendell Holmes Jr. that upheld the compulsory sterilization of a teenaged girl incorrectly diagnosed as mentally retarded. Chemerinsky notes that the decision has never been overruled; in fact, the more modern court held that a judge who ordered an involuntary sterilization with no legal authority whatever could not be sued for the damage he inflicted (Stump v. Sparkman, 1978).
What else? The court failed to protect free speech during World War I or in the McCarthy era of the 1950s. The court limited the ability of federal or state governments to regulate businesses to protect workers and consumers from the 1890s until FDR installed pro-New Deal justices in the so-called Revolution of 1937. And in a complex of lesser-known cases the court has sharply limited the ability of victims of unconstitutional government abuse to sue either the government or the individual officials responsible for their injuries.
Yes, but what about the Warren Court, Chemerinsky says he was asked while working on the book. The court barred racial segregation in Brown v. Board of Education (1954), he concedes, but then sat on the sidelines for a full decade. The court gave indigent criminal defendants the right to a lawyer (Gideon v. Florida, 1963), but did nothing to help the states pay for the new right. Later, the Burger, Rehnquist, and Roberts Courts weakened both decisions by limiting policies to promote racial diversity in schools and making it hard for defendants to prove unconstitutionally “ineffective” representation by court-appointed lawyers.
Despite the indictment, Chemerinsky rejects abolishing either the Supreme Court altogether or its power to declare laws or government actions unconstitutional. He says his fellow liberal advocates of “popular constitutionalism” have undue faith in the political branches’ fidelity to constitutional rights and ignore the invaluable role that the court’s decisions play in teaching Americans about constitutional rights.
Instead, Chemerinsky endorses merit selection of judges, including Supreme Court justices; more candid confirmation hearings; broadcast of Supreme Court proceedings; and 18-year term limits for justices. All well and good perhaps, but they cannot guarantee what Chemerinsky says we “desperately” need a court “more likely to live up to its crucial constitutional responsibilities.”