How To Fix The Supreme Court: Lessons From A Disenchanted Legal Scholar

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October 13, 2014 8:00 a.m.

Erwin Chemerinsky, the founding Dean of UC-Irvine School of Law and a renowned legal scholar, has some scathing words for the Supreme Court: It “has frequently failed, throughout American history, at its most important tasks, at its most important moments.”

This critique is contained in the progressive legal luminary’s new book, provocatively titled “The Case Against The Supreme Court.”

Chemerinsky tells TPM he wrote the book after realizing he had been “making excuses” for the Court over three decades of teaching it, and decided to make the case that it has often failed its duty to protect individual and minority rights against the passions of the majority.

His disenchantment is shared: The Court’s popularity with Americans is near an all-time low of 44 percent, down from 60 percent in the early 2000s. Forty-eight percent now disapprove of it, according to a Gallup poll last week.

Chemerinsky spoke to TPM about why the Supreme Court is broken and how to fix it. A lightly edited transcript follows.

Your book is called “The Case Against The Supreme Court.” That could be read as meaning you want to abolish the Supreme Court, but that’s not what you’re saying. What should be done with it?

I don’t believe we should eliminate the Supreme Court. I believe that the Supreme Court is essential to enforce the Constitution. But I do propose many reforms, ranging from a clear definition of the role of the Court, to merit selection of Supreme Court justices, to changing the confirmation process, to term limits for justices, to changing the way the Court communicates — like cameras in the Court, to applying the ethics rules that apply to lower court judges for Supreme Court justices, and also changing recusal policies in the Supreme Court.

You also argue that Supreme Court nominees should clearly express their views on constitutional issues like the right to an abortion, which they don’t do today.

All presidents through history have considered ideology in choosing who to appoint for the Court. It’s fully appropriate for the Senate to consider ideology. I think the Senate should insist as a condition for confirmation that all candidates answer certain questions about their views.

There are only two reasons I could think of to not ask somebody their views. One is that the views of the nominee don’t matter to what he or she is going to do on the bench. And that seems clearly wrong. If you put somebody on the Court who strongly opposes or strongly supports abortion rights, the odds are overwhelming that’s how he or she is going to vote. The other is the idea that it’s inappropriate to know somebody’s views before they deal with cases because that means they’re not longer impartial. But that seems wrong. We know how Antonin Scalia is going to vote on abortion, we know how Ruth Bader Ginsburg is going to vote on abortion, based on what they said in prior cases. The fact that we know somebody’s views is not disqualifying.

Of the changes you discuss in the book — merit selection of judges, making nominees express their views, 18-year term limits, broadcasting oral arguments — if you had to pick one change that’d best fix the Court, what would it be and why?

I would choose term limits for the justices. It’s also the hardest to bring about because I think it would take a constitutional amendment.

There are a couple of reasons why. Life expectancy has thankfully increased tremendously since 1787. Clarence Thomas was 43 when he went on the Court in 1991. If he remains until he’s 90 years old, the age which Justice [John Paul] Stevens stepped down, he’ll be a justice for 47 years. John Roberts and Elena Kagan were each 50 when they went on the Court. If they stay until they’re 90, they’ll be there 40 years. That’s too much power for any one person to hold for too long a period of time.

Also, too much now depends on the fortuity of timing with vacancies. Richard Nixon got four vacancies in four years; Jimmy Carter got no vacancies in four years. Eighteen-year term limits would mean a vacancy every two years — every president with the same ability to shape the composition of the Court.

You write that the Court has “sanctioned terrible injustices” throughout its history in ruling like Dred Scott to uphold slavery, Plessy v. Ferguson to validate racial segregation and when it upheld Japanese internment camps. Have you in your years as a legal scholar always felt this way about the Court?

I’ve always felt that those decisions have been tragically wrong. I think what I was doing implicitly in my teaching was making excuses in the Court. I tried to portray the Court’s Dred Scotts and Plessys as exceptions and that the Court overall has really succeeded. And it’s only in the last few years that I had this realization that the Court has often failed at its most important tasks at the most important times.

To what extent have the Roberts Court decisions, which you and many others have criticized, on issues like race and minority rights, factored into your dissatisfaction with the Supreme Court?

I think my criticism of the Court is much broader than the Roberts Court. I didn’t want to write the liberal case against the Supreme Court. In the first few chapters I criticize the Supreme Court on race, and at times of crisis, and the Lochner Era [an early 20th century period when it struck down minimum wage and federal child labor laws]. I think liberals and conservatives would agree that those decisions were wrong.

You have high praise for the Warren Court and its decisions for equality like Brown v. Board of Education which overturned the doctrine of separate but equal. Was that the Supreme Court at its best, in your view? Has any other iteration of the Court matched it?

I think the Marshall Court was the best iteration of the Supreme Court. I think decisions like Marbury v. Madison [which established judicial review] laid the foundations for all constitutional law. I applaud the Warren Court but as I argue, it didn’t do nearly enough in key areas like school desegregation and like in making sure that everyone tried for a crime has competent counsel.

What are the best three or four decisions the Court has made in its history?

That’s a great question. I’d certainly put Brown v. Board of Education there. I’d put Marbury v. Madison and McCulloch v. Maryland there. I’d put Gideon v. Wainwright. I’d put Baker v. Carr and Reynolds v. Sims.

And the worst?

Well, Dred Scott, Plessy v. Ferguson, Korematsu [which said Japanese internment camps were constitutional]. That’s a good hall of shame to start with.

What are the worst misconceptions about the Supreme Court in popular society? What does the general public most get wrong about it?

The belief that the justices are objective. The belief that the justices are just applying the law and not making law. The belief that the justices are just umpires. Supreme Court justices have tremendous discretion in the kind of cases that come before them. And I think people don’t recognize that.

Are all Supreme Court justices politically motivated?

I don’t think it’s political in the sense of Democrats versus Republicans. I think it is political in the sense of ideological. The ideology of justices matters enormously. Justices Ginsburg and Scalia so often disagree. It’s not that one is smarter. It’s not that one knows the Constitution better. It’s that their ideology is different.

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