After nearly four decades as a lawyer and 30 years teaching would-be lawyers, and after writing a leading textbook on constitutional law and helping establish a law school, and after standing before the justices five times on behalf of his clients, Erwin Chemerinsky has fallen out of love with the Supreme Court.
His break-up note runs for 342 pages and is called “The Case Against the Supreme Court.” The book makes its regretful message clear at the very beginning:
“We should realize that this is an emperor that truly has no clothes. For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society.”
His conclusion? “The court has frequently failed, throughout American history, at its most important tasks, at its most important moments. This is not easy for me to conclude or to say.”
In an interview, Chemerinsky, 61, an unapologetic liberal and dean of the law school at the University of California at Irvine, seems a bit surprised at himself.
“My nature is to be very optimistic and upbeat,” he says. Indeed, he has a reputation for trenchant and clear scholarship about the court. And his personal demeanor is unfailingly polite and soft-spoken; he is the kind of man who praises an interviewer’s questions.
He says there is nothing personal about his critique of the current court and that all of the justices are “incredibly talented individuals.”
But the justices could be forgiven for thinking that should be taken with a grain of salt.
Chemerinsky testified against Justice Samuel A. Alito at the justice’s confirmation hearings. He wrote last spring that Justice Ruth Bader Ginsburg should resign so that President Obama could appoint her successor. He told Justice Stephen G. Breyer he should be the next to pack up.
He criticizes Justices Antonin Scalia and Clarence Thomas in the book. He smacks Chief Justice John G. Roberts Jr. and Justice Sonia Sotomayor for comments each made at their confirmation hearings that he says perpetuates a myth that judges simply apply the law to the tough cases that come before them, rather than acknowledging their ideological differences and biases.
“Speaking of justices as umpires ignores the tremendous discretion the Supreme Court, and often the lower courts, have in deciding the cases before them,” Chemerinsky writes.
“John Roberts and Sonia Sotomayor should be ashamed of themselves for giving the American people such a misleading impression of what justices do.”
Chemerinsky says he worried from the outset that his book would be “criticized as a liberal’s whining that the Court’s decisions have not been liberal enough.”
Indeed, he says, the liberal Warren Court did not go far enough. Conservative reviewers of his book point out that he highlights the controversy of Bush v. Gore, but never analyzes the reasoning behind Roe v. Wade.
Chemerinsky reaches into history to discuss cases in which he says liberals and conservatives should agree the court did not live up to its obligation to protect individuals against discrimination and the tyranny of the majority: Dred Scott’s denial of citizenship to slaves and their descendants; Plessy v. Ferguson’s embrace of “separate but equal”; Korematsu v. United States’ approval of the internment of Japanese Americans during World War II.
He acknowledges that he moves into more controversial territory when he gets to the current court (“Is the Roberts Court Really So Bad?” is the title of one chapter.) He finds it too deferential to government and beholden to business at the expense of consumers.
Chemerinsky breezes past the cases in which liberals have prevailed on the Roberts court and dwells on what he sees as its conservative misfires.
The court, he says, always has made mistakes. He opens the book with a decision from 1927 in which the court allows the forced sterilization of “imbeciles” and concludes with a ruling four years ago in which conservatives and liberals were unanimous in dismissing a lawsuit from the family of a prisoner who died because of negligent medical care.
Liberal criticism of the court is hardly new. Chemerinsky separates himself, though, from those who question the value of judicial review. It is the only hope for the kind of clients he frequently represents, he says.
He proposes reforms instead: merit selection committees for judges, more candor in the confirmation process and — most significantly — term limits for the justices. Changing their life tenure to defined terms would require a constitutional amendment, Chemerinsky acknowledges.
He endorses a plan favored by other academicians for 18-year terms. That would allow every president an equal chance to nominate to the court and reduce the stakes of each vacancy. Chemerinsky notes that both liberals and conservatives have advocated for such a change.
“If [Texas Gov.] Rick Perry (R) and I agree, likely many others will, too,” he writes.
Chemerinsky says he had some “trepidation” about writing such a critical book and adds that he certainly is not saying the court has failed in its historic mission any more than the executive branch or Congress have failed in theirs.
He remains convinced that “the law is the most powerful tool for social change” and says he hoped his criticism will spur a conversation about the court, not undermine its credibility.
“I’m not one who believes the court’s legitimacy is fragile,” he says.
As for the justices themselves, he says, none will find his criticisms surprising, nor does he believe they will hold it against him if he happens to again find himself in front of the mahogany bench.
Besides, he says , he lost his last two cases there unanimously.
“How much worse could it get?” he asks with a laugh.