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A second look at The Case Against the Supreme Court, the 2014 book by Erwin

Chemerinsky

This seems like a good moment to take down from the bookshelf Erwin Chemerinsky’s 2014
book, The Case Against the Supreme Court (Viking, 386 pages).

The book argues that over time the U.S. Supreme Court’s decisions have frequently been wrong.
The wrong case decisions are often a product of the ideology of the Justices who decide the
cases. For Chemerinsky, ideology means the “values, views, and prejudices” of the Justices.
Those values, views and prejudices are not necessarily the same as those of a particular political
party, but often overlap. There have been some moments when the Court’s wrong decisions
were partisan in the sense of favoring a particular political party’s agenda.

The author’s suggestions for structural reform of the Court are mild. He does not, for example,
advocate doing away with the Court's power to review laws for their constitutionality. He would
have Congress impose term limits, perhaps 18 years, so that the prevailing ideologies of a
particular moment in history are less likely to persist for decades.

But Chemerinsky would like to see Justices appointed who share his own strongly felt
ideological views, which he is not reluctant to express. He believes, for example, that the
Justices should permit latitude so the government can use regulations to aid workers and
consumers. He believes the Justices should allow the government to protect ethnic minorities.
He opposes “originalist” approaches to construing the Constitution.

Chemerinsky is not recommending that operatives for a particular political party he favors be
appointed as Justices – very few people have that point. But it seems likely that he would
subscribe to the popular observation that elections matter.

Turning to some of the history recounted by the author, one point of ideology that has caused
harm concerns race. The “separate but equal” doctrine justifying racial separation was the law of
the land for many decades. The doctrine was abandoned by the U.S. Supreme Court only in
1954, in Brown v. Board of Education, which Chemerinsky hails as a high point of good
Supreme Court decision making. But it took the Court a long time to get there -- decades. And
Chemerinsky finds the Court’s follow-up on the Brown decision to be less than perfect.

And, Chemerinsky points out, the ideology of the judges deciding Brown was crucial. The
deciding judges believed in racial equality and were not “originalists.” They did not limit
interpretation of the Constitution to what the framers originally intended. Recall that framer
Thomas Jefferson (who wrote "all men are created equal") owned slaves, and engaged in sexual
predation.

Among other points of ideology that have caused harm is hostility to ethnic minorities such as
the Japanese. In Korematsu v. United States, the Court, in a 6-3 decision, upheld evacuation and
internment of Japanese-American citizens. Chemerinsky points out that the decision was highly
offensive in its reliance on ethnicity alone to decide who is a threat to national security.
Another important point of ideology is antipathy to regulations intended to protect workers and
consumers. Lochner v. New York was a 1905 Supreme Court case that blocked legislation
limiting working hours for bakers. The theory of the Court involved support for freedom of
contract. The years 1905 to 1936 have been called the “Lochner era,” ending with a partisan
battle by Democrat President Franklin Delano Roosevelt.

Roosevelt wanted to stop the U.S. Supreme Court from blocking his regulatory efforts, so he
threatened to use his popularity and power with Congress to increase the number of Justices.
Such “court packing” would give Roosevelt the power to appoint sympathetic judges and change
case decision outcomes. Faced with that challenge, the nine sitting Justices became more
inclined to see things Roosevelt’s way. Case decisions on regulatory issues began to go
Roosevelt’s way, and court packing was not pursued.

This article is posted by Don Allen Resnikoff, who takes responsibility for the views expressed.

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