archie bunker wrote:
The Supreme Court disagrees. That's all you need to know. Now, send your check to Planned Parenthood while I send mine to the NRA.
No, that is not all you need to know. SCOTUS has been wrong and reversed before. Look at the Dred Scott decision. Or this.
From s***ery to segregation, from Jim Crow to George Bush, the Supreme Court has been consistently on the wrong side of the law.
The critique comes not from some outraged, isolated blogger, but from one of the most respected voices in Constitutional law: Erwin Chemerinsky, Dean of the UC Irvine Law School and author of the newly published The Case Against The Supreme Court.
“The Supreme Court”, Chemerinsky says in a phone interview, “has so often failed through American history at the most important times in the most important ways. There’ve been successes, but not nearly enough, and far too many failures. If they were to get a letter grade over the course of their history, I’d give them a C.”
The Case Against The Supreme Court argues that the Court is the opposite of Rodney Dangerfield — it gets too much respect, given its elitist, pro-business, anti-individual rights record.
“I realize I’m often making excuses for the Supreme Court in my own teaching and scholarship,” Chemerinsky says, “and if we look at the court over the course of history, it so often failed at the most important times, at the most important tasks.
“We tend to remember the great successes, like Brown vs. Board of Education, and forget the great failures like Dred Scott, Plessy vs. Ferguson. And I think it’s because we want to believe that our government overall is a success.”
Even the Brown decision, which ushered in school desegregation, was only a qualified success, Chemerinsky writes. Chief Justice Earl Warren, so intent on achieving unanimity among the Justices, punted on specifics with regard to implementation, allowing school districts to d**g their feet for years or even decades after the landmark case was decided.
The Supreme Court has repeatedly favored s***eholders over s***es, businesses over workers, and the rights of states over those of individuals. In death penalty cases, the Court’s record is especially egregious.
“It takes four v**es to grant cert [agree to hear a case],” Chemerinsky points out, “and five v**es to stay an execution. So there can be instances where the Justices v**e to take a death penalty case, but they don’t stop the execution. The person can be executed before the Court can hear the case.”
The Court has always been an elitist institution, Chemerinsky argues, and that legacy continues today. While the face of the Court appears different, with the bench now featuring three women, two Justices of color, one Hispanic woman, and no Protestants (each for the first time in history), the song remains the same. The Justices all come from the same intellectual backgrounds — mostly Harvard and Yale Law Schools, mostly academics, mostly from the Northeast, and mostly elevated from other elite benches.
“It’s very non-representative geographically of the country,” Chemerinsky adds. “Only two of the nine Justices grew up west of the Mississippi. Only one was appointed west of Mississippi. Every borough in New York has a Justice except for Staten Island. So it is and likely always will be an elitist court. It would be much better off if it had more trial lawyers, more trial judges, and elected officials. It’s a Court that’s not properly balanced in terms of experience, in terms of geography.”
Part of the problem, Chemerinsky argues, is that Supreme Court rules and traditions mitigate against the Court doing a better job. Life appointments, guaranteed by the Constitution, mean that some Justices, like Chief Justice Roberts, Elena Kagan, or Clarence Thomas, could serve for close to half a century. Some Presidents, like Jimmy Carter, get no appointments, while others, like Richard Nixon, had four vacancies in his first two years. The random concentration of power in certain Presidents and certain Justices doesn’t exactly create justice for all, Chemerinsky suggests.