Black-Robed Reactionaries

The Case Against the Supreme Court BY Erwin Chemerinsky. Viking Adult. Hardcover, 400 pages. $30.

For most of American history, progressives have not loved the Supreme Court. Four years before the Civil War broke out, Chief Justice Roger Taney ruled that white settlers’ slaves were protected “property” under the Constitution—a status that would, in Taney’s view, forever prohibit African Americans from becoming citizens of the United States. In the early twentieth century, the court struck down minimum-wage laws and other protections for workers. The Fourteenth Amendment’s promise of “equal protection of the laws,” adopted in 1868, had no application to women until the 1970s. An interpretation of equal protection gave the country the pernicious “separate but equal” formula that upheld segregation in 1896. From abolitionists to labor reformers, critics have generally seen the court as a friend to those who own the country, not to the rest of us who merely live here.

But the last sixty years have been a time of enchantment for liberals seeking the Supreme Court’s imprimatur. In 1954, a unanimous court ruled school segregation unconstitutional in Brown v. Board of Education. Under Chief Justice Earl Warren’s leadership, and with the canny political intelligence of Justice William Brennan, the court established the right of criminal defendants to an attorney, strong free-speech protection, and the principle of “one person, one vote.” The last two, in particular, are now so woven into constitutional culture that it is astonishing to realize that, until well after World War II, the practice of gerrymandering included packing politically disenfranchised groups into large, poorly represented districts while giving others (usually rural and white) a much greater voice. And politically unpopular speech could land you in jail—the fate that famously befell Socialist presidential candidate Eugene Debs, for example, when he spoke out against America’s involvement in World War I. That is a different country. From today’s perspective, most of American history looks flatly unconstitutional.

The court continued on its liberal trajectory in the ’70s. Sex discrimination became unconstitutional, a change so dramatic that, the story has it, Justice Brennan was surprised when a law professor pointed out that the justice’s policy of exclusively hiring male clerks was no longer allowable under his own opinions. Roe v. Wade established the right to abortion, overturning laws in most states. And the liberal story continues: The court invalidated antisodomy laws in 2003, struck down a major portion of the Defense of Marriage Act in 2013, and now seems likely to vindicate same-sex marriage within the decade (and maybe much sooner).

This is the court that young progressives come to law school hoping to address one day with a new theory of freedom or equality, and that their parents still see as the natural defender of liberal values. But change has been in the wind for years. Erwin Chemerinsky, dean of the University of California, Irvine, School of Law and one of the most accomplished litigators and scholars of his generation, argues in The Case Against the Supreme Court that the justices’ bad old ways are coming back. Increasingly, they back big business, prosecutors, and representatives of the white majority. The same institution that brought us “one person, one vote” now guts portions of the Voting Rights Act, upholds voter-ID laws, and protects political inequality in cases like Citizens United. The constitutional right to abortion is dying by a thousand cuts: The swing justice on abortion, Anthony Kennedy, voted to reaffirm Roe v. Wade in 1992 but has otherwise favored upholding every abortion restriction that has come before him. Brown v. Board is now used to strike down affirmative action, whose constitutionality hangs by a thread. Employees, consumers, and defendants tend to lose; bosses, companies, and prosecutors tend to win. Most of the court’s liberal reputation, Chemerinsky argues, is now a matter of history and symbolism.

Moreover, says Chemerinsky (who—full disclosure—was a valued colleague of mine for several years), the court’s rightward tilt is a return to form. His ambition is to assess the court’s performance over the full sweep of its nearly 225-year history, and his bottom line is that the high court has done more harm than good. Before Brown v. Board, it expended far more effort in reinforcing racism than fighting it. A body of elites, it has usually favored the economically powerful.

Maybe most disappointingly, since the Constitution is often described as saving us from “the tyranny of the majority,” the court has not protected unpopular minorities in times of national crisis and fear. Japanese internment during World War II? Upheld, even though the war was all but over, and any alleged domestic threat of Japanese-American subversion had dispersed by the time the court decided Korematsu v. United States. Anarchists during and after World War I, or Communists during the height of the Cold War? Left in jail for political speech, though they were much too marginal (and/or scholarly) to pose a threat. Detainees at Guantánamo and other “enemy combatants” have mostly gotten the same treatment during the authoritarian war on terror.

So what good is a Supreme Court? Recently, some important commentators have echoed Chemerinsky’s claim that the answer is “Not much.” Harvard Law professor Mark Tushnet has argued for “taking the Constitution away from the courts” by eliminating judicial review, judges’ power to invalidate legislation. Jeremy Waldron, the most important living legal philosopher, has argued that courts are poorly suited to settle the conflicts that constitutional law involves—a position also championed by many polemicists on the Left and Right alike. The case against the Supreme Court, which would once have been heresy, is now a small movement.

Chemerinsky, though, doesn’t call for abolishing judicial review. He thinks the ideal of the court as an institution protecting unpopular minorities against oppressive majorities is too important to give up. Instead, he calls for reforms. In lieu of their current lifelong tenures, the justices should serve staggered eighteen-year terms, with a vacancy every two years. This would reduce the arbitrariness of the appointments (Nixon got four, Carter none), and mitigate the macabre spectacle of justices struggling to outlive hostile presidents’ terms. The latter gave us Fugazi’s “Dear Justice Letter,” imploring Justice Brennan to survive George H.W. Bush’s presidency. We’ve gotten nothing from the present, fiercely debated prospect of Ruth Bader Ginsburg’s being forced to fight for her own survival alongside that of her legal legacy.

Chemerinsky also proposes that justices be drawn from lists prepared by professional associations, a merit-based process that many states use for their supreme courts. And he urges senators to stand strong during justices’ confirmation proceedings, to insist on knowing the nominees’ views on controversial cases such as Roe v. Wade and the Affordable Care Act decision. On the whole, he wants the Supreme Court to be more accountable, both to the political process and to the legal profession whose apex it represents. Democratic accountability is antielitist, while professional accountability would reinforce the justices’ standing as the most elite of elite lawyers, but both might make the court more transparent and less priestly and oracular. That seems to be the overall drift of Chemerinsky’s reforms, which also include televising court proceedings—jowls, scowls, bad jokes, and all.

Chemerinsky is a superb litigator, a prominent scholar, and a beloved teacher, and all three sets of skills are on display here. The Case Against the Supreme Court is unfailingly lucid and, among other things, a good primer on the history of constitutional law. But it does have its limitations. Chemerinsky never really owns up to his liberal commitments, presenting his argument instead as an impartial accounting. But he recognizes that judges make decisions in keeping with their own commitments, beliefs, and experiences, and so he knows that there is no such thing as an impartial accounting in the most basic conflicts of public morality. True, everyone views the cases upholding slaveholding and segregation as disasters (though that wasn’t always true)—but nearly everything else is controversial. A network of libertarian scholars, lawyers, and judges has been reassessing the Gilded Age antiregulation decisions for a couple of decades, and their work brought the court to the brink of overturning a major requirement of the Affordable Care Act in 2012. Plenty of people think the best interpretation of Brown v. Board is via a principle of “color-blindness” that invalidates affirmative action. John Hart Ely, who developed the minority-protecting view of the Constitution that Chemerinsky adopts, didn’t think it—or anything else—could justify Roe v. Wade, since women are a slight electoral majority.

In other words, Chemerinsky’s argument lands a series of blows in an ongoing fight but doesn’t acknowledge the depth or extent of the fight. It is very lawyerly to dress up your most controversial claims as agreed-upon and obvious. It is also a staple of American constitutional debate to insist—and believe—that the Constitution is on your side. Here, though, these choices limit an otherwise clear-eyed book’s power as a public act of teaching.

It’s intriguing that the one major exception to Chemerinsky’s downbeat story, the equality-minded Warren Court, spans the period from the ’50s to the early ’70s. This is also the heart of the “golden age of capitalism” that, as Thomas Piketty has recently shown, achieved much greater strides toward economic equality than any other phase of capitalist growth before or since. That was an exceptional time in nearly every respect, and it helped to put in place important egalitarian professional commitments, in the spheres of law and economics alike, while also promoting a broader public culture that seemed to have overcome (or at least significantly mitigated) inequalities that had scarred the country since its founding. Even partially redressing these social ills was a great achievement. Sadly, it also seems to have been a transient one; now we need a constitutional theory, as well as a fresh approach to economics, for a time of renewed conflict.

Jedediah Purdy is Everett Professor of Law at Duke University and the author of A Tolerable Anarchy: Rebels, Reactionaries, and the Making of American Freedom (Knopf, 2009).