The Case Against the Supreme Court

3.93 avg rating
( 163 ratings by Goodreads )
 
9780143128007: The Case Against the Supreme Court

Both historically and in the present, the Supreme Court has largely been a failure
 
In this devastating book, Erwin Chemerinsky—“one of the shining lights of legal academia” (The New York Times)—shows how, case by case, for over two centuries, the hallowed Court has been far more likely to uphold government abuses of power than to stop them. Drawing on a wealth of rulings, some famous, others little known, he reviews the Supreme Court’s historic failures in key areas, including the refusal to protect minorities, the upholding of gender discrimination, and the neglect of the Constitution in times of crisis, from World War I through 9/11.

No one is better suited to make this case than Chemerinsky. He has studied, taught, and practiced constitutional law for thirty years and has argued before the Supreme Court. With passion and eloquence, Chemerinsky advocates reforms that could make the system work better, and he challenges us to think more critically about the nature of the Court and the fallible men and women who sit on it.

"synopsis" may belong to another edition of this title.

About the Author:

Erwin Chemerinsky is the founding dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine, School of Law. He has written for the New York Times, the Los Angeles Times, and the Boston Globe, among many other publications. He lives in Irvine, California.

Excerpt. Reprinted by permission. All rights reserved.:

The Conservative Assault on the Constitution

Enhancing Government

Federal Jurisdiction

Constitutional Law: Principles and Policies

Criminal Procedure (with Laurie Levenson)

Constitutional Law

Interpreting the Constitution

Published by the Penguin Group

Penguin Group (USA) LLC

375 Hudson Street

New York, New York 10014

USA | Canada | UK | Ireland | Australia | New Zealand | India | South Africa | China

penguin.com

A Penguin Random House Company

First published by Viking Penguin, a member of Penguin Group (USA) LLC, 2014

Copyright © 2014 by Erwin Chemerinsky

Penguin supports copyright. Copyright fuels creativity, encourages diverse voices, promotes free speech, and creates a vibrant culture. Thank you for buying an authorized edition of this book and for complying with copyright laws by not reproducing, scanning, or distributing any part of it in any form without permission. You are supporting writers and allowing Penguin to continue to publish books for every reader.

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Chemerinsky, Erwin, author.

The case against the Supreme Court / Erwin Chemerinsky.

p. cm.

Includes bibliographical references and index.

eBook ISBN 978-0-698-17631-7

1. United States. Supreme Court. 2. Judicial review—United States. I. Title.

KF8742.C46 2014

347 73 26—dc23 2014004507

Also by Erwin Chemerinsky

Title Page

Copyright

Dedication

Introduction: Assessing the Supreme Court

PART I. THE PAST: THE SUPREME COURT IN HISTORY

Chapter 1 Protecting Minorities

Chapter 2 Enforcing the Constitution in Times of Crisis

Chapter 3 Protecting Property and States’ Rights

Chapter 4 What About the Warren Court?

PART II. THE PRESENT: THE ROBERTS COURT

Chapter 5 Employers, Employees, and Consumers

Chapter 6 Abuses of Government Power

Chapter 7 Is the Roberts Court Really So Bad?

PART III. THE FUTURE: WHAT TO DO ABOUT THE SUPREME COURT?

Chapter 8 The Question of Judicial Review

Chapter 9 Changing the Court

Conclusion: How Should We Think and Talk About the Supreme Court?

Acknowledgments

Notes

Index

Introduction: Assessing the Supreme Court

Carrie Buck was born in 1906 in Charlottesville, Virginia. She was the first of three children born to Emma Buck. Frederick Buck was Carrie’s father, but he left Emma soon after their wedding. Unable to afford to care for Carrie, Emma placed her with foster parents, J. T. and Alice Dobbs. Carrie went through the sixth grade at the local public school and by all accounts was a normal child. At age seventeen, while Carrie was still living with her foster parents and helping out with chores around their house, she was raped by a nephew of her foster parents and became pregnant.

The Dobbs blamed Carrie for the pregnancy and were shamed by it. On January 23, 1924, they involuntarily committed Carrie to the Virginia State Colony for Epileptics and Feeble-Minded. A few months later, on March 28, Carrie gave birth there to a daughter, Vivian. The State of Virginia immediately took Vivian away from Carrie and put her in the care of Carrie’s foster parents, who ultimately adopted Vivian. As if this story were not tragic enough, the state then sought to have Carrie surgically sterilized by tubal ligation.

Virginia had a new eugenics law that authorized the involuntary surgical sterilization of those deemed to be of low intelligence. Virginia was not alone. By the 1930s, more than thirty states had laws that allowed for the involuntary sterilization of criminals, those of low intelligence, and those with so-called hereditary defects, including alcoholism and drug addiction in some states and even blindness and deafness in others.

A hearing was held before Carrie Buck’s sterilization. Harry Laughlin, the drafter of many of these eugenics laws, provided a deposition in Carrie’s case. He began his “family history” of the Bucks by writing, “These people belong to the shiftless, ignorant and worthless class of anti-social whites of the South.” Laughlin stated that Carrie and Emma were “feeble-minded,” as determined by the Stanford-Binet intelligence test, which had recently been created. Carrie, he said, scored a mental age of nine years; Emma, her mother, seven years and eleven months.

Laughlin said that most feeblemindedness is inherited, and Carrie Buck fit this pattern. “Generally feeble-mindedness is caused by the inheritance of degenerate qualities; but sometimes it might be caused by environmental factors which are not hereditary,” he said. “In the case given, the evidence points strongly toward the feeble-mindedness and moral delinquency of Carrie Buck being due, primarily, to inheritance and not to environment.”

A social worker, Caroline Wilhelm, testified that Carrie’s daughter, Vivian, was mentally retarded. At the time of the hearing, Vivian was seven months old. Wilhelm said that “there is a look about it that is not quite normal, but just what it is, I can’t tell.” She said that the baby seemed “apathetic.” She then urged Carrie Buck’s sterilization: “I think,” she said, “it would at least prevent the propagation of her kind.”

We now know that neither Carrie nor Vivian Buck was mentally retarded. Many years later, professor Paul Lombardo found Carrie Buck and wrote: “As for Carrie, when I met her she was reading newspapers daily and joining a more literate friend to assist at regular bouts with the crossword puzzles. She was not a sophisticated woman, and lacked social graces, but mental health professionals who examined her in later life confirmed my impressions that she was neither mentally ill nor retarded.”

Vivian Buck died at the age of eight, from enteric colitis. Harvard professor Stephen Jay Gould tracked down her records and found that at the Venable Public Elementary School of Charlottesville, which she attended for four terms—from September 1930 to May 1932, a month before her death—she received passing grades in every subject.

Carrie Buck’s sister, Doris, also was surgically sterilized without her consent. Doris was told that she was having an appendectomy, but instead a tubal ligation was performed on her. It was not until 1980 that Doris learned what had been done to her. She, too, was of normal intelligence.

The United States, of course, was not alone in performing surgical sterilizations—vasectomies for men and tubal ligations for women—on those who were deemed “unfit.” Before World War II, Nazi Germany subjected 375,000 people to forced sterilization—most for “congenital feebleness,” but at least four thousand for being deaf or blind.

But isn’t the United States different, because we have a Constitution that protects individual liberties and we have a Supreme Court to enforce it? Carrie Buck’s case made it all the way to the Supreme Court in a lawsuit with the doctor who performed the operation, John Bell. A guardian for Buck, R. G. Shelton, filed the case on her behalf and challenged the constitutionality of the Virginia law that authorized involuntary sterilizations. Buck’s attorney, Irving Whitehead, argued that her fundamental rights had been violated by surgically sterilizing her without her consent and that forced sterilization was “cruel and unusual punishment.” After all, Carrie Buck had committed no crime and had done nothing wrong. She was involuntarily institutionalized by her foster parents after she was raped. Buck’s case was the vehicle for challenging state eugenics laws that were being used to surgically sterilize the “unfit” all across the country.

But the Supreme Court, in Buck v. Bell, in 1927, ruled against her by an 8–1 margin. None other than the eminent Justice Oliver Wendell Holmes Jr. regarded as one of the greatest jurists in American history, wrote the opinion for the Court against her. Before being appointed to the Supreme Court in 1902, Holmes had fought in the Civil War, been a professor at Harvard Law School, and served as a justice and chief justice of the Massachusetts Supreme Judicial Court. He served for thirty years on the United States Supreme Court before retiring at age ninety. His opinions in many areas, such as those arguing in favor of protection of freedom of speech, are among the most revered in American history.

In Buck v. Bell, Holmes began his opinion by stating that “Carrie Buck is a feeble-minded white woman who was committed to the State Colony. . . . She is the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child.” Justice Holmes, writing for the almost unanimous Court, then upheld the Virginia law and the constitutionality of the sterilization of Carrie Buck. The Court said that sterilizing her could not be deemed cruel and unusual “punishment” because she had not been convicted of any crime. The Court then went further, not only upholding the Virginia law that Buck was challenging, but defending the desirability of eugenics laws. Justice Holmes said that such eugenics laws are desirable because they keep the country from being “swamped with incompetence.” In some of the most offensive and insensitive language to be found in the United States Reports, Holmes declared, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”

Thousands more were surgically sterilized as a result of this decision. In the United States, by 1935, more than twenty thousand forced sterilizations had occurred, nearly half in California. In fact, at the Lynchburg Hospital, where Buck was sterilized, four thousand individuals were involuntarily surgically sterilized, some as late as 1972. Altogether, according to attorney John G. Browning, “over 60,000 Americans nationwide were subjected to salpingectomies [the removal of one or both of a woman’s fallopian tubes], vasectomies, or castrations.”

How can this be? How could the Supreme Court have failed so miserably? It is not that her case was poorly briefed or argued. It is not that the justices could not perceive the inhumanity and injustice in surgically sterilizing a young woman without her consent. In fact, most lower courts to consider the issue prior to Buck v. Bell had declared involuntary sterilization unconstitutional. It is simply that the Court sided with the government and failed to protect an individual from a horrific abuse of power.

Evaluating the Supreme Court

Throughout this book, I tell stories of instances in which the Supreme Court sanctioned terrible injustices. The examples are drawn from throughout American history and from every area of constitutional law.

For more than thirty years I have taught these cases and been outraged by them. I have wanted to believe that they are the exceptions to the Supreme Court’s overall successful enforcement of the Constitution. But as the years went by, as the cases that seem misguided—even tragically so—filled my casebook and my syllabus, I came to realize that it is time for me to reexamine the Supreme Court. It is important to ask directly the question, Has the Supreme Court been a success or a failure?

My conclusion is the thesis of this book: The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments. This is not easy for me to conclude or to say. Almost forty years ago, I decided to go to law school because I believed that law was the most powerful tool for social change and that the Supreme Court was the primary institution in society that existed to stop discrimination and to protect people’s rights. In a society filled with inequalities and injustices, the civil rights lawyers of the 1950s and ’60s were the model for what I wanted to be.

I have been teaching, writing, and litigating about constitutional law for more than thirty years now. I have argued cases before the Supreme Court. I am the author of the leading law school textbook about constitutional law. Through it all, I have uncritically assumed that despite obvious missteps the Supreme Court has done far more good than harm. But now, as I try to assess the performance of the Court, all of my years of studying, teaching, and practicing constitutional law have convinced me that the Supreme Court is not the institution that I once revered. It has rarely lived up to these lofty expectations and far more often has upheld discrimination and even egregious violations of basic liberties.

My disappointment in the Court is both historical and contemporary. One need only look at the Court’s decisions from the past few years—preventing employment discrimination suits and class actions against the largest corporations, keeping those injured by misconduct of generic drugmakers from having any recovery, denying remedies to those unjustly convicted and detained—to see what has historically been true: the Supreme Court usually sides with big business and government power and fails to protect people’s rights. Now, and throughout American history, the Court has been far more likely to rule in favor of corporations than workers or consumers; it has been far more likely to uphold government abuses of power than to stop them.

I realize, of course, that there needs to be a rubric for assessing whether the Court is succeeding or failing. One measure is the decisions of the Court, like Buck v. Bell, that are uniformly condemned by subsequent generations of scholars and judges. Can anyone seriously contend that the Court was not mistaken, terribly so, in its ruling against Carrie Buck? To make the case against the Supreme Court, I will focus especially on examples like this, where virtually everyone today—liberal and conservative alike—can agree that the Court was wrong.

Why Have a Constitution?

Before we can judge the Court, we have to know why it exists. This in turn requires thinking about what the Constitution is meant to accomplish. I begin every constitutional law class, whether for law students or undergraduates, by asking them a basic question: Why have a Constitution? Why, in 1787, was it desired, and why have it today?

It is easy to describe what the Constitution does. The Constitution both empowers and limits government; it creates a framework for American government, but it also limits the exercise of governing authority by protecting individual rights. It creates the institutions of American government—Congress, the president, the Supreme Court and federal judiciary—defines how they are chosen, delineates key aspects of how they operate, and grants powers to each. It also specifies, especially in the Bill of Rights, the liberties that people possess upon which the government cannot infringe.

But that does not address the question I pose to my students: Why accomplish these things through a constitution? Great Britain, for example, has no written constitution. In the Netherlands, no court has the power to declare any law unconstitutional; in fact, its judiciary is prohibited from doing so. The governments in these countries are not totalitarian.

If no constitution existed in the United States, there likely would have been some initial informal agreement creating the institutions of governmen...

"About this title" may belong to another edition of this title.

Top Search Results from the AbeBooks Marketplace

1.

Chemerinsky, Erwin
Published by Penguin Books 2014-01-01 (2014)
ISBN 10: 0143128000 ISBN 13: 9780143128007
New Paperback Quantity Available: 3
Seller
BookOutlet
(Thorold, ON, Canada)
Rating
[?]

Book Description Penguin Books 2014-01-01, 2014. Paperback. Book Condition: New. Paperback. Publisher overstock, may contain remainder mark on edge. Bookseller Inventory # 9780143128007B

More Information About This Seller | Ask Bookseller a Question

Buy New
3.94
Convert Currency

Add to Basket

Shipping: 4.60
From Canada to U.S.A.
Destination, Rates & Speeds

2.

Chemerinsky, Erwin
Published by Penguin Books (2015)
ISBN 10: 0143128000 ISBN 13: 9780143128007
New Paperback Quantity Available: 1
Seller
Reuseabook
(Stroud, GLOS, United Kingdom)
Rating
[?]

Book Description Penguin Books, 2015. Paperback. Book Condition: New. Dispatched, from the UK, within 48 hours of ordering. This book is in Brand New condition. Bookseller Inventory # CHL2145469

More Information About This Seller | Ask Bookseller a Question

Buy New
7.14
Convert Currency

Add to Basket

Shipping: 1.75
From United Kingdom to U.S.A.
Destination, Rates & Speeds

3.

Chemerinsky, Erwin
Published by Penguin Books
ISBN 10: 0143128000 ISBN 13: 9780143128007
New PAPERBACK Quantity Available: 1
Seller
Recycleabook
(West Carrollton, OH, U.S.A.)
Rating
[?]

Book Description Penguin Books. PAPERBACK. Book Condition: New. 0143128000 US STUDENT EDITION - Free Tracking number with every purchase. Satisfaction guaranteed. Orders ship within 1-2 business days. (Hawaii,Alaska, Puerto Rico and APO's, allow additional time for delivery.). Bookseller Inventory # Z0143128000ZN

More Information About This Seller | Ask Bookseller a Question

Buy New
6.67
Convert Currency

Add to Basket

Shipping: 3.06
Within U.S.A.
Destination, Rates & Speeds

4.

Erwin Chemerinsky
ISBN 10: 0143128000 ISBN 13: 9780143128007
New Quantity Available: 2
Seller
BWB
(Valley Stream, NY, U.S.A.)
Rating
[?]

Book Description Book Condition: New. Depending on your location, this item may ship from the US or UK. Bookseller Inventory # 97801431280070000000

More Information About This Seller | Ask Bookseller a Question

Buy New
10.15
Convert Currency

Add to Basket

Shipping: FREE
Within U.S.A.
Destination, Rates & Speeds

5.

Chemerinsky, Erwin
Published by Penguin Group USA (2015)
ISBN 10: 0143128000 ISBN 13: 9780143128007
New Quantity Available: > 20
Seller
Paperbackshop-US
(Wood Dale, IL, U.S.A.)
Rating
[?]

Book Description Penguin Group USA, 2015. PAP. Book Condition: New. New Book. Shipped from US within 10 to 14 business days. Established seller since 2000. Bookseller Inventory # VP-9780143128007

More Information About This Seller | Ask Bookseller a Question

Buy New
7.88
Convert Currency

Add to Basket

Shipping: 3.06
Within U.S.A.
Destination, Rates & Speeds

6.

CHEMERINSKY, ERWIN
Published by Penguin Random House
ISBN 10: 0143128000 ISBN 13: 9780143128007
New Quantity Available: > 20
Seller
INDOO
(Avenel, NJ, U.S.A.)
Rating
[?]

Book Description Penguin Random House. Book Condition: New. Brand New. Bookseller Inventory # 0143128000

More Information About This Seller | Ask Bookseller a Question

Buy New
8.27
Convert Currency

Add to Basket

Shipping: 2.69
Within U.S.A.
Destination, Rates & Speeds

7.

Erwin Chemerinsky
Published by Penguin Putnam Inc, United States (2015)
ISBN 10: 0143128000 ISBN 13: 9780143128007
New Paperback Quantity Available: 1
Seller
The Book Depository
(London, United Kingdom)
Rating
[?]

Book Description Penguin Putnam Inc, United States, 2015. Paperback. Book Condition: New. Reprint. Language: English . Brand New Book. Both historically and in the present, the Supreme Court has largely been a failure In this devastating book, Erwin Chemerinsky---one of the shining lights of legal academia- (The New York Times)--shows how, case by case, for over two centuries, the hallowed Court has been far more likely to uphold government abuses of power than to stop them. Drawing on a wealth of rulings, some famous, others little known, he reviews the Supreme Court s historic failures in key areas, including the refusal to protect minorities, the upholding of gender discrimination, and the neglect of the Constitution in times of crisis, from World War I through 9/11. No one is better suited to make this case than Chemerinsky. He has studied, taught, and practiced constitutional law for thirty years and has argued before the Supreme Court. With passion and eloquence, Chemerinsky advocates reforms that could make the system work better, and he challenges us to think more critically about the nature of the Court and the fallible men and women who sit on it. Bookseller Inventory # AAS9780143128007

More Information About This Seller | Ask Bookseller a Question

Buy New
11.05
Convert Currency

Add to Basket

Shipping: FREE
From United Kingdom to U.S.A.
Destination, Rates & Speeds

8.

Erwin Chemerinsky
Published by Penguin Putnam Inc, United States (2015)
ISBN 10: 0143128000 ISBN 13: 9780143128007
New Paperback Quantity Available: 1
Seller
The Book Depository US
(London, United Kingdom)
Rating
[?]

Book Description Penguin Putnam Inc, United States, 2015. Paperback. Book Condition: New. Reprint. Language: English . Brand New Book. Both historically and in the present, the Supreme Court has largely been a failure In this devastating book, Erwin Chemerinsky---one of the shining lights of legal academia- (The New York Times)--shows how, case by case, for over two centuries, the hallowed Court has been far more likely to uphold government abuses of power than to stop them. Drawing on a wealth of rulings, some famous, others little known, he reviews the Supreme Court s historic failures in key areas, including the refusal to protect minorities, the upholding of gender discrimination, and the neglect of the Constitution in times of crisis, from World War I through 9/11. No one is better suited to make this case than Chemerinsky. He has studied, taught, and practiced constitutional law for thirty years and has argued before the Supreme Court. With passion and eloquence, Chemerinsky advocates reforms that could make the system work better, and he challenges us to think more critically about the nature of the Court and the fallible men and women who sit on it. Bookseller Inventory # AAS9780143128007

More Information About This Seller | Ask Bookseller a Question

Buy New
11.41
Convert Currency

Add to Basket

Shipping: FREE
From United Kingdom to U.S.A.
Destination, Rates & Speeds

9.

Erwin Chemerinsky
Published by Penguin Putnam Inc, United States (2015)
ISBN 10: 0143128000 ISBN 13: 9780143128007
New Paperback Quantity Available: 10
Seller
Book Depository hard to find
(London, United Kingdom)
Rating
[?]

Book Description Penguin Putnam Inc, United States, 2015. Paperback. Book Condition: New. Reprint. Language: English . This book usually ship within 10-15 business days and we will endeavor to dispatch orders quicker than this where possible. Brand New Book. Both historically and in the present, the Supreme Court has largely been a failure In this devastating book, Erwin Chemerinsky---one of the shining lights of legal academia- (The New York Times)--shows how, case by case, for over two centuries, the hallowed Court has been far more likely to uphold government abuses of power than to stop them. Drawing on a wealth of rulings, some famous, others little known, he reviews the Supreme Court s historic failures in key areas, including the refusal to protect minorities, the upholding of gender discrimination, and the neglect of the Constitution in times of crisis, from World War I through 9/11. No one is better suited to make this case than Chemerinsky. He has studied, taught, and practiced constitutional law for thirty years and has argued before the Supreme Court. With passion and eloquence, Chemerinsky advocates reforms that could make the system work better, and he challenges us to think more critically about the nature of the Court and the fallible men and women who sit on it. Bookseller Inventory # BZV9780143128007

More Information About This Seller | Ask Bookseller a Question

Buy New
11.82
Convert Currency

Add to Basket

Shipping: FREE
From United Kingdom to U.S.A.
Destination, Rates & Speeds

10.

Chemerinsky, Erwin
Published by Penguin Group USA (2015)
ISBN 10: 0143128000 ISBN 13: 9780143128007
New Quantity Available: 5
Seller
Pbshop
(Wood Dale, IL, U.S.A.)
Rating
[?]

Book Description Penguin Group USA, 2015. PAP. Book Condition: New. New Book.Shipped from US within 10 to 14 business days. Established seller since 2000. Bookseller Inventory # IB-9780143128007

More Information About This Seller | Ask Bookseller a Question

Buy New
8.83
Convert Currency

Add to Basket

Shipping: 3.06
Within U.S.A.
Destination, Rates & Speeds

There are more copies of this book

View all search results for this book