Academic journal article Vanderbilt Law Review

Introduction: Is the Supreme Court Failing at Its Job, or Are We Failing at Ours?

Academic journal article Vanderbilt Law Review

Introduction: Is the Supreme Court Failing at Its Job, or Are We Failing at Ours?

Article excerpt

It is a pleasure and a privilege to write an introduction to this Symposium celebrating Dean Erwin Chemerinsky's important new book, The Case Against the Supreme Court. 1 Chemerinsky is one of the leading constitutional scholars of our time and a frequent advocate before the U.S. Supreme Court. If he thinks there is a case to be made against the Court, we should all take it very seriously indeed.

Chemerinsky's thesis may be stated in a few sentences. The primary role of the Supreme Court, in his view, is to "protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities."2 Canvassing the Court's performance over two centuries, he concludes, first, that it has failed dismally at those tasks. Nevertheless, he reaches two additional conclusions: he believes that we can and should expect the Court to do better, and he outlines reforms that might help it do so.

Chemerinsky makes a strong case that the Court has historically failed to live up to its role. His primary historical examples-from Dred Scott v. Sanford and Plessy v. Ferguson to Buck v. Bell and Korematsu v. U.S.-are widely thought of as reprehensible. (His contemporary examples are more controversial, as Professor Brian Fitzpatrick's contribution to the Symposium illustrates,3 but Chemerinsky really doesn't need those examples to support his conclusions.) Where there is room for argument is on his second and third conclusions: Is it reasonable to expect the Court to live up to Chemerinsky's expectations, and how can we help ensure that it does so?

In the pages that follow, constitutional scholars address these questions. Professors Gerald Rosenberg and Corinna Lain argue that it is unrealistic to expect the Court to escape political, cultural, and structural constraints to rein in repressive popular majorities. "[T]he Supreme Court is structurally and inherently conservative,"4 writes Rosenberg, and "the practice of judicial review has done more harm than good to those lacking power and privilege."5 Lain argues, similarly, that the Court is ill-equipped to play the "heroic, countermajoritarian role" that Chemerinsky expects of it.6 This is especially true in the cases that make up Chemerinsky's evidence of failure. As Lain puts it, "history shows that when minorities are most vulnerable-when society is itself repressive-the Justices are least likely to see the need to protect."7 Or as Rosenberg says, "what [the Court] cannot do is to protect the vulnerable when the broader society is unwilling to do so." 8

Professors Ed Rubin and Barry Friedman take the opposite position. Agreeing with Chemerinsky, they believe that the Court can and should fulfill its rights-protecting role even in repressive times. Rubin contends that even in 1927, when Buck v. Bell was decided, the Justices should have been aware that sterilization was morally reprehensible, politically controversial, and scientifically questionable.9 The same Court that was vigorously protecting property rights in cases like Lochner v. New York, he argues, should have been more sensitive to rights of bodily integrity. Friedman has less to say about the historical examples, but agrees with Chemerinsky's condemnation of the Court for modern immunity doctrines that allow government officials to violate constitutional rights with impunity.10 As Friedman tells the Court: "You had one job."11 Remedying violations of rights was that one job, but immunity doctrines mean that instead of actually deciding whether rights were violated-instead of "actually call[ing] . . . balls and strikes"-the Court "defer[s] to the players themselves every time something really troubling crosses [its] plate."12

Chemerinsky responds to Lain and Rosenberg with two points. The first is to suggest that the question of whether the Court should have been expected to do better is "far less important to [his] project"13 than is persuading his readers that the Court has failed, because he is not interested in "moral blameworthiness. …

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