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