One of the nation’s foremost constitutional law scholars, Erwin Chemerinsky, recently wrote a book titled “The Case Against the Supreme Court.” Chemerinksy does not pull his punches; he blames liberal and conservative justices alike for failing to uphold our constitutional values: “The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments.”
The failures include the Court’s decisions declaring African-American slaves property, approving the racist “separate but equal” policy, upholding a law allowing the involuntary sterilization of individuals of low intelligence, sanctioning the internment of 100,000 innocent Japanese-Americans during the Second World War, repeatedly denying remedies for individuals who suffer awful government abuses, and consistently favoring businesses at the expense of consumers. He even blames the Warren Court (denounced by conservatives for being too liberal) for not going far enough in protecting our constitutional rights.
For most of Chemerinsky’s 30-plus year career, he was a fan of the Supreme Court and willing to forgive the Court its transgressions. His book reflects a deep sadness upon coming to terms with the fact that these transgressions are not sporadic but systematic. I recommend this elegant, elegiac book to anyone concerned about our constitutional rights and the role of the Supreme Court in our society. Indeed whenever the author of the leading textbook on constitutional law issues a broadside against the Supreme Court, it is worth paying attention.