The Atlanta Lawyer June/July 2015 | Page 8

Book Review The Case Against the Supreme Court Erwin Chermerinsky | Viking: 386 pp., $30 By Michael Jablonski Law Office of Michael Jablonski [email protected] T he essential argument of The Case Against the Supreme Court rests on the assumption that the “two preeminent purposes of the Court are 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.” The evidence, according to Prof. Chemerinsky, demands a finding of guilt on the charge of consistent failure to safeguard individual rights in the face of unrelenting oppression. He argues that the Court’s failure is not due to deficiencies exhibited by individual justices (although he does not shy away from identifying deficiencies he perceives with Justices Roberts, Scalia, Thomas, and Sotomayor) but that structural problems with the judiciary as an institution enhance tendencies to favor government regulation and business interests. Erwin Chemerinsky, the founding dean of the law school at the University of California Irvine, was named the most influential person in US legal education by National Jurist magazine in 2014. He has written numerous books, among them well-regarded casebooks on constitutional law, criminal procedure, and federal jurisdiction. His thoughtful condemnation of the Court as an institution is strengthened by experience as an advocate before it, as well as frequent appearances in other courts. The first part of the book documents the parade of wellknown failures wrought by the Court: approval of “separate but equal” in Plessy v. Ferguson; the ruling that any person descended from a slave could be a citizen for Article III purposes in Dred Scott; ratification of race-based internment in Korematsu; approval of statutes forcing sterilization of “imbeciles” (the characterization used by Justice Oliver Wendell Holmes in the majority opinion) in Buck v. Bell; and others. Nothing in the part of the book reciting the litany of spectacular failures should be new to any lawyer. Less famous cases flesh out the argument that the Court fails to protect the defenseless. For example, Chemerinsky details the development of sovereign immunity jurisprudence as a shield for public officials acting improperly. Thomas 8 THE ATLANTA LAWYER June/July 2015 Lee Goldstein served 24 years in jail for murders he did not commit as a result of testimony by an inmate notorious for supplying information about other prisoners in return for favorable treatment. Nothing about the informant’s past had been supplied to the defendant before trial. Goldstein’s habeas corpus petition was granted when the malfeasance was discovered but the Supreme Court, overruling lower courts, held that the prosecutor was protected from a damage suit by absolute immunity. The book effectively undermines the obvious counterexample of the Warren court as a protector of minorities. Chemerinsky acknowledges that while the Warren court, beginning with Brown v. Board of Education, championed the rights of individuals in area