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Judging the Supreme Court: More harm than good, says prominent legal scholar

Erwin Chemerinsky
University of California Irvine
Erwin Chemerinsky

U.S Supreme Court Justices John Roberts and Sonia Sotomayor should be “ashamed of themselves,” legal scholar Erwin Chemerinsky told a St. Paul audience Monday night.

At his confirmation hearing, Roberts likened the job of a justice to that of a baseball umpire, calling balls and strikes, Chemerinsky reminded the audience. Sotomayor said at her confirmation hearing justices don’t “make law,” they just “apply” law.

Chemerinsky, dean of the Law School at the University of California at Irvine, said those justices and others who made similar claims throughout U.S. legal history were misleading the public, and reinforcing the widely held idea that the role of the Supreme Court is merely to “divine” the correct meaning of the U.S. Constitution. It’s a popular belief, he said, but at some level “we all know better.”

Chemerinsky is a liberal. He calls the Citizens United ruling (which opened the door to almost unlimited campaign contributions) one of the worst in history. His previous book was called “The Conservative Assault on the Supreme Court.”

But his latest book, “The Case Against the Supreme Court,” is not (or is more than) a liberal attack on the work of the Roberts court (as he signals by including liberal Justice Sotomayor in the denunciation above). Chemerinsky is arguing that:

a) The Supreme Court has been, on balance, a more negative than positive influence on our country throughout its history, and

b) The idea that justices bring neutral, objective legal principles to the task of “divining” the true meaning and purpose of the language in the statutes and the Constitution is bunk.

On the contrary to b) above, says Chemerinsky:

“We should all admit that this is an emperor that has no clothes… The judges of the Supreme Court have tremendous discretion – discretion in interpreting the open-ended language of the Constitution…

We should recognize what the Supreme Court is doing, day in and day out, is making value choices. And we should make them accountable for those value choices.”

Chemerinsky spoke last night at Hamline Law School in an annual endowed lecture named for David Cobin, a former professor at the Hamline school who died in 2011.

Chemerinsky reviewed many of the most famous awful Supreme Court decisions:

  • Like Plessy v. Ferguson, which upheld racially segregated public accommodations from 1896 to 1954 and was the legal basis for the legality of the Jim Crow south;
  • Or the court ruling that upheld a long prison sentence for socialist Eugene Debs for telling an audience of young men during World War I that “You need at this time especially to know that you are fit for something better than slavery and cannon fodder.” If the First Amendment doesn’t protect the right of an opponent of government policy, including the policy of entering the war, what good is it? Chemerinsky asked.

For years, Chemerinsky said, he had taught these cases, which are all understood in retrospect to have been miscarriages of justice, as if they were anomalies. But by explaining them that way, he said, “I realized I had been making excuses for the Supreme Court.”

These cases were not really so much the exceptions, as the rule, he decided.  

Protecting minority rights

If there’s any excuse in a democracy to allow unelected judges to overrule elected representatives, it should be to protect minority rights. The majority can protect itself by electing those with whom it agrees. But “the court exists to protect the rights of minorities.”

But, in broad overview, he argued, the Supreme Court has done a terrible job of protecting minorities, the poor and the defenseless. From 1789 to 1865, in roughly 100 percent of cases affecting slavery, the Supreme Court “aggressively protected the rights of slave-owners,” Chemerinsky said, but never once ruled in favor of the rights of slaves.

From 1896 (the date of the Plessy v. Ferguson ruling) until 1954 (the date of the Brown vs. the Board of Education ruling), the court enforced the spurious doctrine of “separate but equal,” which amounted to enforcing the preference of the powerful over the powerless. And as recently as 2013, the court struck down key provisions of the Voting Rights Act, which he estimated had jeopardized the voting rights of about 600,000 Americans, almost all of them African-Americans or Hispanic.  

When he lets loose this denunciation of the Supreme Court’s failure to protect the powerless, his students always bring up the Warren court of the 1950s and 1960s, which delivered many decisions upholding the rights of the powerless. Yes, he tells them, the Warren court “did a lot of good.” But not as much as they should have. The Brown ruling ordered that separate segregated school systems be dismantled with “all deliberate speed,” a weird oxymoron that allowed the status quo ante to continue for many more years.

Brutal case

I’ve written about Supreme Court jurisdiction fairly often over the years, and was familiar with most of the cases Chemerinsky cited, although I had seldom been exposed to such a wide-ranging, overall indictment of the court’s overall effect. But Chemerinsky did talk about some cases that were new to me, including this one, with which he opened his talk. (It’s fairly brutal so you might want to stop reading here.)

Carrie Buck, a Virginia teenager, was raised by a foster family in 1920s Virginia. She was raped and impregnated by a nephew of her foster mother. Blamed for her pregnancy, she was committed in 1924 into a hospital for the “feeble-minded,” where the superintendent sought to have her sterilized, against her wishes. Her guardian started a lawsuit to block the procedure which ended up going to the U.S. Supreme Court, which, by a vote of 8-1, upheld the Virginia law allowing the sterilization to proceed. The majority opinion, by the famous and generally admired Justice Oliver Wendell Holmes Jr., concluded that “Three generations of imbeciles are enough.”

Buck eventually left the hospital, was married (but could have no further children) and lived a long life that showed little evidence of feeble-mindedness. Her daughter (the product of the rape for which her mother was blamed and presumably representing the third of the three generations of imbeciles to which Justice Holmes referred) was an honor roll student the year before she died of measles.

In his book, Chemerinsky outlined several reforms that he suggests would move things in the right direction. For example:

  • Presidents should employ a merit selection process to screen potential Supreme Court nominees. (President Jimmy Carter did utilize such a panel for lower-level federal judicial appointments.)  

  • All public proceedings of the Supreme Court should be televised. (Given the amount of power the justices have over our lives, the public should be able to watch them work.)

  • Ethical rules that apply to lower-level judges should apply to the Supreme Court. (Currently it is entirely up to each justice to decide whether, for example, he or she has a conflict of interest that requires recusal.)

  • Justices should serve for a single, non-renewable 18-year term. (This one would require a constitutional amendment, which Chemerinsky acknowledged makes it highly unlikely. But given the combination of the tendency to appoint younger judges and the rises in life expectancy, the potential becomes likely for justices to serve many decades, which Chemerinsky called “too much power for one individual to hold for too long.” If Justice Clarence Thomas, who was nominated at age 43, retires at age 90, as Justice John Paul Stevens recently did, Thomas will have been on the bench 47 years. Chemerinsky also said the regular rotation and fixed terms would reduce the level of flukiness that allows one president to appoint many justices while another may appoint none at all.)

Comments (10)

  1. Submitted by Paul Brandon on 02/17/2015 - 10:29 am.

    Numbers three and four

    are the biggies, particularly making the Supremes subject to the same rules of conduct as other justices. The selection process is somewhat less important; people change (see Souter, David).
    Remembering that there’s nothing in the Constitution about how to select/appoint Supreme Court justices. The existence of the Court is simply assumed. Consistent with the ‘layering’ approach of the Constitution as originally written, one might infer that the Founders expected the lower courts to select representatives to the Supreme court, as the State legislators selected Senators.

  2. Submitted by john herbert on 02/17/2015 - 10:51 am.

    Good Suggestions

    Although a Judge/Justice is supposed to be merely a referee, I agree they often go beyond their envisioned roles in ways that harm the nation. Consider forced busing where unelected judges set school boundaries…. my classes find those cases and the subsequent decay in the urban core most interesting.

    I like the recommendations above and would add that district and appellate judges could serve no more than two 9 year terms at any “lower level” – being a judge should not be a job for life – imagine the sight of a 90 year old umpire making the deciding call at the plate in Game 7.

  3. Submitted by Kurt Nelson on 02/17/2015 - 01:05 pm.

    Some points

    While the Dean’s comments about specific cases may be accurate when applying them to current society, the Court has been maturing along with society – and that is an important thing to remember.

    I recently read former Chief Justice Rehnquist’s book on the Court, where he dedicated an entire chapter to the Taney court. Now most of us know that Chief Justice Taney wrote the worst decision in history (or one of the worst 2) with Scott v. Sanford, but his history on the Court is much larger than one decision, no matter how badly that decision reflected on that him as a Jurist. I’m still not a big fan of Justice Taney, but it was interesting to read what the Chief had to say about his whole body of work.

    Between the tenure of the two Chief Justice’s, Marshal and Taney, there were 15 Presidents – so yes, there ought to be term limits.

    Over at ScotusBlog, there is a five part video series with Dalia Lithwick, where she spends at least most of one part talking about the refusal of the Court to use video – she is spot on, and brings a very intimate view on the matter. Its worth the time to watch.

  4. Submitted by Eric Ferguson on 02/17/2015 - 01:56 pm.

    split the court

    Maybe the court should be split. Have a court that’s the highest court of appeals in matters of law or fact, and a separate court when there’s a question of constitutionality. Right now, the court is nearly a lawmaking body, voting along ideological lines.

  5. Submitted by Ray Schoch on 02/17/2015 - 03:04 pm.

    Interesting take

    …and I’m inclined to agree with Chemerinsky’s suggestions, especially replacing the lifetime appointment with a single, lengthy term. In fact, I’d like to see that applied to legislators at state and national levels, as well. If being a Scotus judge shouldn’t be a lifetime career, neither should having a seat in the House or Senate. Talk is heard occasionally about the president living “in a bubble” that’s removed from the everyday experience of most Americans, and that same idea applies, perhaps even more so, to judges and legislators who have made judging or legislating a lifetime calling. It shouldn’t be.

    Let me also second Kurt Nelson’s suggestion about ScotusBlog. Dahlia Lithwick, who writes for Slate as well, is the best “popular” or non-legal writer on the Scotus and related legal issues that I’ve read in a long time. Kurt is right that she brings an “intimate” view to the subject – she’s sat through several sessions of the Court, and is a careful observer.

    • Submitted by Paul Brandon on 02/17/2015 - 03:22 pm.

      Politcal problem

      Congressional terms limits would have to be enacted by the people whose terms were being limited.
      ‘Nuff said.
      Might be a way around it if enough state legislatures voted for a constitutional convention, but I wouldn’t wait for that either.
      I favor an effective form of term limitation: cleaning up the current campaign donation mess and enacting real election process reform to reduce the current invincibility of incumbency. Add to that the effect of gerrymandering, resulting in the real congressional elections usually being the primaries and you’ve got an undemocratic maze, and the rats are losing the race.

  6. Submitted by James Hamilton on 02/17/2015 - 03:36 pm.

    It’s still a liberal point of view, isn’t it?

    Isn’t he really saying here that the Supreme Court has not been an agent for change but a reflection of the society in which it found itself? With that, I’d agree. I would not expect the court to be anything else. It is in many ways a sort of sea anchor, generally preventing a too rapid change of the law in any direction. The features that leave its “errors” in place for decades, if not generations, are the reactive nature of the courts and the doctrine of stare decisis. These function to suppress change regardless of the makeup of the court, by chilling subsequent challenges and dictating the result when challenges are made, at least until the failure of the earlier decision is inescapable.

  7. Submitted by Ilya Gutman on 02/17/2015 - 09:56 pm.

    What to do

    It is amazing that someone may still argue that the Supreme Court is NOT a political body. Of course, they make decisions based on their political views – just look how many 5 to 4 decisions the Court handed down and how often it overrides itself (and we all remember that Constitution doesn’t change, just its interpretations). And how can it be different – they are all people.

    The decisions that Mr. Chemerinsky offers are ineffective in my mind. But two things can be done. First, ignore all court decisions that are made by one vote majority and second, adopt all laws with provision that only Congress has the power (and responsibility) to review law applications, issue clarifications and interpretations, and revise laws as necessary if there are discrepancies and ambiguities within certain time. I don’t know if a Constitutional amendment would be required for that (don’t have time to research) but at least these measures will clear the picture. After all, Congress makes laws so they should be the ones to say what they mean, not the Court.

    • Submitted by Kurt Nelson on 02/18/2015 - 08:02 am.

      Marbury v. Madison

      Check it out. While Judicial review is not enumerated in the constitution, that case, and most notably Chief Justice Marshall’s, opinion is as settled law as we have. I suppose the Court could take it upon themselves to reverse that decision, but that would put them out of business.

      This quote pretty much sums up the decision.

      “Let the ends be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to the end, which are not prohibited, but consistent with the letter and the spirit of the constitution, are constitutional”.

  8. Submitted by Neal Rovick on 02/18/2015 - 09:39 am.

    We’ll all be waiting for the patented “impartial judging machine” for a long time.

    And even then upon the dawning of the new age of impartiality there will be dissatisfaction with result.

    But until that magical day, it’s an all-to-human process goaded by the slickest reasoning money can buy.

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