Book Review
the Senate in his confirmation hearing. Justices should be
limited to 18 year terms staggered so that a new justice is
seated every two years. The book makes a very strong case
for adoption of a system nominating judges based upon
merit, rather than politics, modeled on the scheme employed
by President Jimmy Carter
One problem with Chemerinsky’s argument is that it is
based upon an unproven premise that the twin purposes
of the Supreme Court are to protect minorities and prevent
repression. While I share his view that these should be defining
characteristics of the Court in the American constitutional
system, I would have appreciated an argument making out
this case. It would be possible to make minor alterations in
the first part of the book to support an argument that the Court
has been fantastically successful in protecting interests of
the 1% minority against the demands of the 99%, to use the
slogan of the Occupy movement. (To be fair, Chemerinsky
defines the class to be protected as “minorities who cannot
rely on the political process.” The 1% identified by Occupy
seem to have no problem buying protection.) Commenters
such as Derek Bell (The Constitutional Contradiction)
explicitly reject the idea that the Constitution was designed
to protect personal liberty against repressive tendencies of
majorities.
The Official News Publication of the Atlanta Bar Association
We tend to forget that rights championed by the Warren Court
emanated from amendments to the Constitution, not from
the core document issued by the Constitutional Convention
of 1787. The present Constitution was written for commercial
purposes redressing disastrous economic policies embodied
in the Articles of Confederation adopted in 1777. Even given
the Constitution’s predisposition to favoring the economic
over the idealistic, the fact that adoption of the Constitution
in 1789 depended on amendments protecting personal
freedom justifies an assessment that certain ideals are core
to American culture. In this sense, The Case Against the
Supreme Court encourages lawyers to be optimistic about
the fundamentals of our Constitutional system. The case,
like a good brief, is well-researched, easy to follow, and
compelling.
Michael Jablonski practices Political Law. He is also a
Presidential Doctoral Fellow in the Transcultural Conflict
and Violence Research Group at Georgia State University.
He co-authored (with Shawn Powers) The Real Cyber War:
The Political Economy of Internet Freedom, published by the
University of Illinois Press in March.
June/July 2015
THE ATLANTA LAWYER
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