Book review: The Case Against the Supreme Court

End of Summer book review time! By now you surely have read Dean Chemerinsky's latest, The Case Against the Supreme Court. But if not...

As the introduction makes clear, the book tells "stories of instances in which the Supreme Court sanctioned terrible injustices" and asks the question "Has the Supreme Court been a success or a failure?" In case you missed the book's title, Dean Chemerinsky concludes that "The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments." What is the Court's job? "[T]o enforce the Constitution against the will of the majority." Thus, the Court's "preeminent purposes" 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." Again, he concludes that "the Court has largely failed at both of these tasks."

After the introduction, the book has three parts, covering the past (The Supreme Court in History), the present (The Roberts Court), and the future (What to do about the Supreme Court). The first two parts set forth examples of the Court's failures. The last part includes proposed "Reforms That Might Make a Difference":

1. Clarify the Role of the Supreme Court, i.e., have a mission statement that clearly and explicitly defines what Court is supposed to do, so that the justices, lawyers, academics, and society are all clear about this.
2. Merit Selection of Justices, i.e., presidents should use merit-selection panels, like Jimmy Carter did for federal court of appeals vacancies.
3. Change the Confirmation Process, i.e., end the Kabuki Theater; make nominees answer questions about their views on key constitutional issues.
4. Term Limits for Justices and Regularized Vacancies, i.e., staggered 18-year nonrenewable terms, so that a vacancy would occur every two years. Vacancies that occur by death or resignation could be filled by interim appointments.
5. Changing Communications, e.g., offer reasons for denying cert; broadcast court proceedings; announce a day in advance when an opinion will issue (like the Cal Supremes); word-limits on opinions (like the word limits imposed on appellate briefs).
6. Post Argument Briefs, i.e., given how many questions at argument don't get answered, always allow each side to file a very short post-argument brief.
7. Ethics and Recusals of Supreme Court Justices, i.e., the standards applicable to lower federal court judges should apply to the justices; justices should not be allowed to make their own decisions about recusal; a procedure should exist to substitute a randomly assigned retired justice to fill any vacancies.

Dean Chemerinsky notes that: "A mystique surrounds the Court, one that for too long has shielded it from the criticism and scrutiny it deserves." This book takes big strides in both criticizing the Court and proposing solutions. If you're reading this blog, then you'll find much to ponder in The Case Against the Supreme Court.