Erwin Chemerinsky: The Case against the Supreme Court
| Published date | 01 September 2015 |
| DOI | http://doi.org/10.1111/j.1467-6478.2015.00720.x |
| Date | 01 September 2015 |
TH E CA SE A GA IN ST T HE S UP RE ME C OU RT b y ER WI N
CHEMERINSKY
(New York: Viking Books, 2014, 344 pp., £20.00)
Under no system can the power of courts go so far as to save a people from
ruin; our chief protection lies elsewhere. If this be true, it is of the greatest
public importance to put the matter in its true light.
1
`The Court has frequently failed, throughout American history, at its most
important tasks, at its most important moments' (p. 5), writes Erwin
Chemerinsky, the centre thesis of his recent book on the United States
Supreme Court. When a towering scholar such as Chemerinsky so explicitly
and thoroughly challenges America's highest legal institution, people pay
attention. But not just scholars are dissatisfied with the Court. Politicians,
journalists, and more importantly, the American public, appear increasingly
disgruntled with the institution and how it is handling its (defined and
undefined) constitutional roles. To a significant degree, Chemerinsky's book
captures the essence of how the Court arrived at this point.
This review argues that Chemerinsky's book is just the beginning in
regard to a more sophisticated disparaging of the Supreme Court. The
enhanced polarization that has crept into American politics has now entered
into the Supreme Court, largely because of two George W. Bush appointees:
Chief Justice John Roberts, Jr. and Associate Justice Samuel Alito, Jr.
Therefore many people, including the media and others, are disparaging the
Court at unprecedented levels. This enhanced critical approach to the Court
may have begun with one decision in particular, followed by a provocative
presidential comment. On 27 January 2010, President Obama, still riled over
the Citizens United decision,
2
addressed Congress and the wider American
public. In his annual State of the Union speech, and with members of the
Court seated directly in front of him, he stated:
With all due deference to separation of powers, last week the Supreme Court
reversed a century of law that I believe will open the floodgates for special
interests ± including foreign corporations ± to spend without limit in our
elections. I don't think American elections should be bankrolled by America's
most powerful interests, or worse, by foreign entities. They should be decided
by the American people.
3
Although throughout its history the Supreme Court has certainly not been
immune from presidential criticism,
4
these comments struck a chord. First,
464
1 J.B. Thayer, `The Origin and Scope of the American Doctrine of Constitutional Law'
(1893) 7(3) Harvard Law Rev. 129, at 156.
2Citizens United v. Federal Election Commission, 558 U.S. 310 [2010].
3 White House, Remarks by the President in State of the Union Address (2010), at
address>.
4 See FDR's `court packing plan', or all the shouting about the dangers of `activism'
and the honour of `restraint' during the Warren era.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
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