The Case Against the Supreme Court Paperback – 29 Sept. 2015

Excellent insight and very readable, even for an outsider with little knowledge of the Supreme Court.

Erwin Chemerinsky is the newly appointed dean of Berkeley Law. In this fascinating and convincing book, he argues that the US Supreme Court has often failed, throughout American history, at its most important tasks, at its most important moments.He shows how “the Supreme Court usually sides with big business and government power and fails to protect people’s rights. Now, and throughout American history, the Court has been far more likely to rule in favor of corporations than workers or consumers; it has been far more likely to uphold government abuses of power than to stop them.” It has largely failed to protect the rights of minorities and failed to uphold the Constitution in the face of pressures from the government and business. He lists the Supreme Court’s terrible decisions: upholding slavery in the 19th century, upholding ‘separate but equal’ for 58 years, allowing government attacks on free speech during World War One, striking down (from the 1890s to 1936) more than 200 federal, state and local pro-labour regulations, permitting the internment of Japanese Americans during World War Two, failing to do all it could to desegregate schools, failing to ensure effective counsel for everyone facing prison, protecting business at the expense of workers and consumers, failing to protect civil liberties after 9/11, closing the courthouse doors to those injured by the government, failing to rule that a prison sentence of 50 years to life for stealing $153 worth of videotapes was a cruel and unusual punishment, and denying review to an Arizona man who was sentenced to 200 years in prison for possessing 20 pictures of child pornography, with no possibility of parole or clemency.He argues that the Court could instead have ruled less aggressively to protect the rights of slaveowners. It could have done far more to advance racial equality in the 20th century and now. It could have ruled in favour of free speech during World War One. It could have found unconstitutional the evacuation and internment of Japanese Americans in World War Two and it could have done far more to protect civil liberties after 9/11. It could have ruled that a prison sentence of 50 years to life for stealing videotapes was a cruel and unusual punishment. It could have not denied review to the Arizona man who was sentenced to 200 years in prison for possessing 20 pictures of child pornography, with no possibility of parole or clemency.

For most Americans and for most observers worldwide, the US Supreme Court is a sacred, shining, untouchable, pure, dependable defender of the law, and by extension, of the people. According to Erwin Chemerinsky, nothing could be farther from the truth. Through a shameful history of case law, The Case Against The Supreme Court shows justices determining the functioning of society through their own lenses, religion, and political bents. When the law is inconvenient, they simply ignore it, or worse, declare it unconstitutional and dispense with it altogether. They have often made it literally impossible for people to sue at all, despite Congress passing laws specifically concerning their rights. The Court isolates those laws and makes them unattainable, either through prerequisite conditions that can never be fulfilled, or by granting immunity to the perpetrators, or by declaring the law’s intent as something diametrically opposed to what Congress clearly intended. Sometimes the Court has simply interpreted that very law as if it were written to favor business instead of the citizen, often a stretch. Unfortunately, their word is final, and again, Congress be damned. It is a juicy, meaty read, as well as shameful, embarrassing and depressing.Chemerinsky cites an early justice (Marshall) to the effect that the primary reason for having a Supreme Court is to enforce the constitution against the will of the majority. It is to protect minorities who don’t have political clout, and protect against the majority imposing repressive actions. Unfortunately, justices are human, with prejudices and baggage, and once in power, they often seek to please themselves rather than interpret the case and the relevant laws. Unfortunately too, they are the last stop, report to no one, are completely unaccountable, and appointed for life.Because there is so much data, Chemerinsky focuses on three principles: race, civil rights in times of crisis, and government regulation. He examines those kinds of decisions in various eras. His structure is classical: tell them what you’re going to say, say it, and tell them what you said. This makes the book a little pedantic, not to mention longer, but everything is unambiguous – unlike many Supreme Court decisions. He details the runup to the cases, the decision and the dissents, but mostly the impact on society and our laws.There is debate about the current (Roberts) Court being among the worst, if not the worst, ever. Chemerinsky profiles an even worse Court, the Holmes Court, and the period from 1890-1937. That Court made up constitutional rights, like the “Freedom of Contract”, and used it to nullify over 200 laws that were passed to protect labor, consumers, and civil rights. Compare this to the period 1803-57, when not a single law was declared unconstitutional by the Court. The Roberts Court has invented Equal State Sovereignty, a fictitious constitutional right than prevents the federal government from dealing with different states as needed. It is a common disease of making the rules instead of applying them, a Supreme Court specialty, because no other court could get away with it.It is easy to think the USA is built on a solid foundation of rights. But until 1933, people could be tried in state courts, convicted and executed without any legal representation at all, because the Supreme Court said the Bill of Rights only applied to the federal government, and not the people. Even Freedom of Speech – purely a government right. It has been a difficult slog to get as far as we have, and credit is due mostly to the Warren Court of the 1950s-70s, the way Chemerinsky details legal history.The Supreme Court seems never to have liked victims: “The decision reflects the majority’s bias in favor of business and its skepticism, if not hostility towards employment discrimination plaintiffs” is a result you see over and over in the book. The Court also hands out immunity at will, so that victims cannot sue the police, the state, civil servants or their agents at all. Police can lie in court with impunity, guards have denied medical treatment to detainees until death, and judges have ordered sterilizations without fear of reprisal. Immunity is usually absolute.As I read this litany of failure, it became clear that Supreme Court judges need to be chosen not by the president for their political usefulness, religion or ideology, but by their peers. They should be chosen for their skills on a balanced bench, not for their party affiliation. Particularly since they report to no one. And Chemerinsky goes there towards the end, citing Jimmy Carter’s nominating committees. They gave a huge boost to minorities and the overall quality of judges, because judges know their coworkers far better than senators do. Unfortunately, Ronald Reagan immediately ditched that process in favor of partisan nominations. It would take a constitutional amendment to make it mandatory, something no one can even contemplate in our poisonous atmosphere.Chemerinsky, who has lived and breathed Supreme Court all his life, prescribes a litany of simple changes, all common sense, all helpful, and none controversial, that would make communications clearer and bring a better understanding of this important institution to everyone. After Bush v. Gore, Citizens United and other mystifying, destructive decisions, the Court’s reputation could use a burnishing. But this Court shows no will to open up. It’s absolute power corrupting absolutely, and the country is being remade once again, in their image. They aren’t there for you. Or even the law.David Wineberg