Q&A: Erwin Chemerinsky on What’s Broken in the Supreme Court, and How to Fix It
Erwin Chemerinsky, dean of the School of Law at the University of California at Irvine, has written a new book in which he carefully lays out The Case Against the Supreme Court (Viking, 400 pages, $30). It’s a polemic that is both rooted in history and looks ahead to the future—and it’s not nearly as cranky as the title makes it sound.
I spoke with him recently by phone about the biggest problems he sees with “the most pro-business Court we’ve had since the 1930s,” and where he thinks we can go from here.
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Is it possible to generalize about whether the Supreme Court’s decisions throughout history have been beneficial overall, or harmful overall, for the country?
I don’t think it’s possible…there’s too many decisions, and it’s hard to add up harms and benefits, let alone how to weigh them. I think what one can say, though, is that the Supreme Court has often failed, often with the most important tasks, often at the most important times.
What do you think are the most harmful decisions that stand out for you in history?
Dred Scott v. Sandford in 1857 found that slaves were property, and not persons, and precipitated The Civil War. Plessy v. Fergusson found that “separate but equal” was constitutional. Korematsu v. The United States called for the internment of 100,000 Japanese Americans in World War Two. But I begin my book on Buck v. Bell, the story of how the Supreme Court allowed the involuntary sterilization of people—60,000 people were involuntarily sterilized as a result. And I could go on with other examples.
Well, those are good examples! How has the Supreme Court kept pace with social progress throughout history? Does it tend to be behind the times, or ahead of the times, or has that changed as well?
It varies. There are times when the Supreme Court was ahead of the times—Brown v. The Board of Education. There were times when the Supreme Court, I think, was behind the times—in the 1930s, when the Supreme Court was striking down all of the New Deal legislation to deal with the Depression.
How would you evaluate today’s Supreme Court, in those terms?
Well…I don’t think you can evaluate the times when you’re at the times! That would require having the sense of the future, which none of us have. What I think it’s fair to say about this Court is, it’s the most pro-business court we’ve had since the mid-1930s, a Court that consistently favors corporations over employees and consumers. I think it’s a Court that very much favors government power over individual freedom.
There was a study done by Richard Posner, a federal court appeals judge, William Landes, a retired professor at the University of Chicago, and Lee Epstein, a professor at Washington-St. Louis. They concluded that this is the most pro-business Court we’ve had since the 1930s.
If we can try to project ourselves into the future, looking back a hundred years from now, at something like Citizens United, how do you think history will view that decision?
I think history will look badly at Citizens United. I think that Citizens United is going to have—is having—a terribly distorting effect on our political system. I think that over time we’re a nation that advances equality—think of what’s happened with regard to race, or sexual orientation equality—over time. I think Citizens United is the opposite from wanting to have equality in the political system. It gives tremendous political power to corporate wealth.
How has popular opinion of the Supreme Court among voters changed throughout our history?
It’s substantially lower now than it’s been. But approval of government is much lower than it’s been. I think that the opinion of the Supreme Court is generally higher than the other branches of government, and that’s been true throughout history—and the court’s approval ratings throughout much of history have been pretty constant.
So, when people see the title of your book, it might be easy to get the wrong idea—but you’re not advocating for the Supreme Court being shut down or anything like that.
No! And in an additional chapter of my book before the conclusion, I disagree with those who would eliminate judicial review and the power of the court to declare laws unconstitutional. But the title was intentionally chosen to convey the thesis of the book—that the Supreme Court has so often failed through American history, at the most important times and in the most important ways.
Let’s talk about some of the reforms that you’re proposing. For instance, let’s take lifetime appointments for Supreme Court justices: who thought that was a good idea?
The framers of the Constitution did! Because they had seen the abuses that came when the King of England could remove judges at will. I think that, in general, for most judges, life tenure is a good thing. Or long terms. I want judges to decide cases based on the judge’s best view of the laws at hand. I don’t want judges to decide cases to please the voters.
But what concerns me about Supreme Court justices is, thankfully, life expectancy is a lot longer today than it was in the 1770s. Clarence Thomas was 43 years old when he was confirmed to the Supreme Court in 1991. He’ll remain on the Court until he is 90. (That’s also the age at which Justice Stevens left the court.) He will have been there for forty-seven years. Elena Kagan and John Roberts were each 50 when they were confirmed to the Court. If they remain until they’re 90, they’ll be there for forty years. It’s too much power, held by a single individual, for too long a period of time.
I argue for eighteen-year, non-renewable terms.
Why do you think the Supreme Court still refuses to televise court proceedings?
I think justices oppose this because they are afraid that clips will be taken out of context and played on Jon Stewart. But a reporter could take a comment out of context, and audio tapes are released, which could be excerpted out of context. The Court should not be able to protect itself from scrutiny in this way.
There should be cameras in the Supreme Court for every argument and every proceeding. What the Court does affects all of us, in the most important and intimate aspects of our lives. There are only 350 seats in the courtroom at the Supreme Court. The American people should be able to see this branch of government at work.