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.”