The Case Against the Supreme Court

by Erwin Chemerinsky

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.

Genres: Law, Nonfiction, Politics, History, Legal, American History, Audiobook

Audible Audio

First published September 25, 2014

Reviews

[Sunny Lu · Rating 4 out of 5]

SCOTUS so unserious

[Diane S ☔ · Rating 4 out of 5]

Thoughts soon.

[Socraticgadfly · Rating 3 out of 5]

Good overall idea, but some punches are pulled

The biggest value is in the title, with the idea that Americans should stop fetishizing the Supreme Court. Unfortunately, it's arguable the court is, not just today but in the past, even worse than Chemerinsky portrays it.

Citizens United was wrong and McCutcheon even worse. Yes, and Buckley 40 years ago was wrong too, but Chemerinsky doesn't take time to explain how wrong it was at the root of this. In fact, he doesn't even mention the Buckley decision by name and references it in passing only once.

Yes, the court has brought some comfort to racial minorities, women and others at times, but, even more liberal courts have too often bowed down too much to the moneyed class.

He's also too kind to the Rehnquist Court on Bush v Gore. I don't have a problem myself stating that five justices, seeing an opportunity, wanted Bush to win. He's also wrong about the question of loss of stature that the court suffered from this.

The remedies? Yes, ending lifetime tenure is good, but not enough. The other ideas might be better, but primarily for Supreme Court PR.

Chermerinsky never mentions expanding the size of the court as an option. Today we have 11 enumerated appellate courts plus the DC court. So why not 12 associate justices plus the chief? This would also allow for more diversity of all sorts on the court.

He also, while noting that SCOTUS, and in general, inferior courts in the US system, rely heavily on the role of precedent, or stare decisis. He never asks, really, if our courts do this too much.

Tied with this? Another punch pulled.

Chemerinsky noted that SCOTUS has ruled education is not a >fundamental< right. But, he never follows up on this, which connects to his comments about precedent.

Also, he never asks if there's more our courts in general, and the Supreme Court in specific, could learn from continental European jurisprudence. He twice mentions The Netherlands' top court not having judicial review power, but that's it.

The book still deserved three stars, to the degree it gets people to stop fetishizing the court. But no more than that.

[Ted Morgan · Rating 5 out of 5]

The Constitution of the United States is a jerry built contraption interpreted by powerful bureaucrats appointed for life who go far beyond any reasonable accounting of the basis behind their decisions. The Case Against the Supreme CourtWhile finding broad "principles" or "original" intentions in the document might seem the way to interpret this fundamental document, it isn't.

The Constitution is hard to change but is changed by the Supreme Court, though that was, it seems, not the original intention in having that court. Also, the Constitution protected economic interests and still does. Major changes such as insuring reproductive freedom or abating it ought to be done generally through political, not judicial processes.

This has become an important book for me that forced and forces me to rethink the Constitution and how wrong takes on it have undermined our national life. This a book I need to reread and build upon.

[Susan Tunis · Rating 4 out of 5]

Originally published nearly a decade ago, the audiobook is updated with a chapter looking at the new conservative supermajority brought in with Donald Trump's justices. The rest of the book is unchanged, which isn't hugely problematic, as the text is looking at cases spanning the history of the country.

It's a fine overview for those without much knowledge of the cases, but may feel a bit redundant for those with more familiarity. It is likely to induce feelings of rage and frustration in those with progressive leanings.

[Vincent Li · Rating 4 out of 5]

An excellent read. Chermerinsky is one of the leading scholars in constitutional law, so the book is definitely worth a read through. One of the many things I liked about the book was that he managed to explain the technicalities and nuances of the law in a way that is understandable to the layman. In particular, the book is a good collection of historical failures of the court, on the topics of race, and national crisis for example. I would really recommend this book to those with a budding interest in the law, and the role of the court in shaping society.

Chermerinksy is clearly liberal, but admits this and tries to write a book that would resonate with both sides of the political divide. It shows pretty clearly that he believes in a progressive court and his criticisms of the Roberts court and more current affairs is definitely influenced by his liberal ideology. Despite leaning a little moderate myself, I would still recommend the book, as its examples and prescriptions are so wide that there's something in the book for everyone. In particular, I found the section on absolute immunity and qualified immunity enlightening. I did wish that he explored the contrasting viewpoints more thoroughly. For example, Epstein and more libertarian professors would have a wildly different evaluation of the Lochner era, while Chemerinsky takes the typical progressive line that it was generally a mistake.

A few criticisms I have of the book is that I generally am uncertain that Chemerinsky shows that there is a systemic failure in the courts. His salient examples are certainly wide ranging in time and topic, but he still leaves open the charge that his survey of the courts failures is cherry picking. Personally, I felt like some more systematic overview would have assured this doubt. I find his proposed solutions disjointed and separate from the rest of the book. The book rests mainly on showing the various failures of the court, but his solutions read rather like a miscellaneous wish list of reforms rather than clear crafted solutions to the problems explored. Regardless, his suggested reforms are both interesting and controversial from live broadcasting the court's proceedings to term limits and merit boards. I find that the book is good overall, and worth the read to anyone with an interest in constitutional law.

[Jon-Erik · Rating 2 out of 5]

The controversy over this book shouldn't be that it calls for major reforms to the Supreme Court. Rather, the controversy should be why it took until 2014 for a major legal scholar to realize this was the case.

The answer is that the ascendent generation of legal scholars lived in the one period where the Court was an agent for progressivism. Indeed, I imagine most of those scholars were, like Chemerinsky states himself, inspired into the profession by those cases in the first place. This so drastically biased the view of these scholars, and their waiting for some messiah to return that era, that they were blind to the obvious truth: the Court has, as a rule, been a reactionary force in American politics.

There is virtually no other country in the world that we would consider "free" where an unelected, lifetime body of sages can strike down acts of the democratically elected legislature. There is one country that does have such an arrangement that I can think of, however: Iran.

Chemerinsky fails to point out—until his discussion of the merits of term limits—that the times when the Court was relatively progressive or moderate were times when the people were already way ahead of them. The "switch in time that saved the nine" in the 30s was one such example. Chemerinsky claims that the Civil Rights Act of 1964 was more or less enabled by the Brown v. Board of Education decision, but, in my opinion, the only way that's correct is that without it, the Congress could have expected any civil rights laws it might enact to be struck down. He claims the political process would have taken much longer—just a few sentences after pointing out that the Court's early jurisprudence on the 14th amendment set back civil rights for decades. If Congress had been able to act according to the plain meaning of the 14th amendment, it might have done so. Who can say?

There is a contemporary example. Gay marriage is a hybrid of judicial decisions, popular referenda, and acts of legislatures. Even though at the moment, it appears that the existing cases require gay marriage to be legal, it's hard to believe we would have gotten there if so many states and the political process hadn't moved too—indeed, a key step was "civil unions" that were widely enacted by legislatures. From there, it was an easier argument to say there's no sense in discriminating between group A and group B. And this change has come about rather rapidly as these things go.

Finally, judicial review gives the legislatures and Congress the ability to punt on controversial laws and take political credit for feeding red meat to their base without owning the consequences of actual enactment, especially in the case of very controversial laws. This fact gets just a few sentences of consideration by Chemerinsky.

Congress is extremely unpopular and it is unlikely that Americans would support an amendment giving them the authority to override the Supreme Court, say, on a two-thirds vote with concurrence from the President (no veto override). But there ought to be some further check and balance on the decisions that don't involve the political pressure of removal or term-limits like Chemerinksy suggests.

One much more practical way to do this is to demand from Presidential candidates that they appoint justices who will give greater deference to Congress than they do.

Chemerinsky's lead suggestion is to re-implement the "merit-based" judge selection implemented by President Carter. This is a suggestion only a law professor could love. In a time when political procedural obstruction is at its maximum, what possible benefit could there be from another veto point in a process? Would Chief Justice Earl Warren survive such a panel today? After all, he was not a Harvard educated appeals court judge. Chemerinskiy deplores the homogeneity of the Court's composition while suggesting a process that would only serve to make it even more the same.

I find it troubling how much Chemerinksy's consideration of ending judicial review is a straw man. In his example, there would be no vindication for any rights in court if judicial review pursuant to Marbury v. Madison were ended. In an extreme case, yes. He could, but does not, distinguish between several potential layers of judicial restraint that are possible. His example includes full deference to acts of the executive and the legislature. Why does this need to be the case?

Under English law, where Parliament is supreme, the Crown cannot act without legal authority and a court is empowered by mandamus to prevent such acts, just as it is in the United States. Even under such a system, there are judicial checks on executive action, and they aren't limited to violations of the English constitution just like American injunctions can issue from courts for violations of non-constitutional rights as well.

But what an English court cannot do is declare an Act of Parliament down. It can interpret it and if can reconcile conflicts. In Israel, there are "basic laws" which are presumed to trump other enactments, but the Knesset has the authority to amend the Basic laws, but political checks prevent that from happening with any regularity at all.

I wouldn't even go so far as to suggest that US courts cannot declare laws unconstitutional, but I believe that ideal justices would limit the holdings to each case and give a duly authorized act of Congress rational basis review in all cases. In a more ideal system, I would suggest that the American equivalent of "Parliament"—often misunderstood to just be Congress—but in fact, is the President and Congress (c.f. "King in Parliament") as the other two branches should have an additional check on Supreme Court decisions that touch on the Constitution.

Chemerinsky, after spending the beginning part of the book showing how terribly the Court has done in what he sees as its mission of protecting those that the political process won't protect, and citing examples where the political process has protected them (like the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Bipartisan Campaign Finance Reform Act of 2002) somehow just decides that all of this will be worse if there is no further check on the Courts. I find his argument to be very much not compelling.

The political process does better than he gives it credit for, and the Court is as bad as he says. The solution, then, isn't to simply let the executive and legislative branches run wild, but it isn't enough to just screen justices through a merit panel and then let them do anything they want.

But all of this assumes the truth of a very problematic assertion: that the judicial process is, in fact, outside of the "political process." Is this true? Does the judicial system exist on separate plane? I simply don't believe that. Not after over 10 years of practicing law. Granted, Chemerinsky gives a few examples of where the judicial process has worked where the "political" process has failed—but this implies it wasn't the "political process" that put those judges on the Court in the first place. Indeed, part of Chemerinsky's own argument for term limits for judges is that they be a product of their time, not 40 years prior. If we are to have judges and justices infused with the ideologies of the time, the process becomes even more political.

All of this, of course, is put in sharp focus by the fact that political ideology, not whatever abstract theory of Constitutional interpretation, a judge subscribes to is the number one most reliable predictor of how he or she will vote. Not political? And I haven't even mentioned Bush v. Gore yet.

Any political process is always going to disfavor certain people. Part of the genius of our Constitution was engineering some checks on this. But acting as if the Constitution was made perfect (which Chemerinsky does not) means not extending the principle of checks in favor of leaving one branch unchecked due to a ruling that branch itself made that the Constitution's own authors did not foresee.

For every Brown v. Board, I can show you a Civil Rights Act of 1964. For every Roe v. Wade, there is a Social Security Act. We may dislike Congress, but at least they have to answer to us.

I've already mentioned why merit-based selection panels are flawed and will only exacerbate the very flaws Chemerinsky complains of, but what about term limits? What has the experience been in putting term limits in place in other branches?

Well, it hasn't much harmed the Presidency, but with the exception of FDR, no President has ever served more than two terms to begin with. It is rather less common for a party to win a third term in a row, though it happens. (Just once since World War II -- Bush I after Reagan).

But in state legislatures, term limits on legislators has simply replaced the party machinery as the organization in charge and greatly deprived legislators of independence. They look to see what they will be doing next. This won't be any different for a 14-year Supreme Court term. We will simply see a series of clones put in place by the political process that places them.

If we're going to open the Constitution to solve this matter instead of just change the existing political process to require justices to give huge deference to Acts of Congress (if not executive powers), then why not simply give the Congress and President the ability to reverse the judgment of the Supreme Court?

[Carson · Rating 5 out of 5]

“In a society with a long history of discrimination, there should be a presumption that many laws with a discriminatory impact likely were motivated by a discriminatory purpose.”

In many, many cases the supreme court has made significantly harmful and irreparable decisions. This is because of many reasons, personal bias, cultural norms and beliefs, political leanings. The issue at the root of the Supreme court - laid out in this book - is that they too are human, and yet above review. No institution should be above reproach. This book is not an advocate for the total destruction of the supreme court, but a restructuring of it, but that is seen as extreme nowadays. In the meantime though, people will suffer again and again. From people unable to get medical attention in prison denied the right to sue, to patients harmed by drugs where companies are not held accountable, to the upholding of racial segregation and the denial of women and people of color to vote, to Japanese Americans thrown into internment camps, the supreme court has made truly horrific decisions.

[Michael Griswold · Rating 4 out of 5]

***I received a copy of this book through Goodreads First Reads Program in exchange for a review. The opinions expressed are my own.

Erwin Chemerinsky argues that the Supreme Court is not objective and bases its decisions on their own biases rather than the neutral agenda that they claim to follow. Most recently, this bias has been tilted in the conservative direction during fundamental cases such as Bush vs. Gore and Citizens United. This is not a new argument, several liberal constitutional law scholars have made similar arguments over the last several decades. On this basis, it would be easy to claim that this is just another liberal whining about decisions that didn’t go their way.

Chemerinsky takes several further steps by looking at Supreme Court decisions since the slavery era to illustrate that the Supreme Court has often failed to live up to the expectation the American people have that the court will uphold their constitutional right. He finds that over time, the Supreme Court whether liberal or conservative leaning has come down decidedly against protecting citizens constitutional rights. From this, he then makes a fairly compelling case for reforming the Supreme Court.

My quibble with Chemerinsky is that he is making a major leap in assuming that the American public knows or frankly cares what the Supreme Court does. With the average person, excepting temporary blips following controversial decisions such as Bush vs. Gore and Citizens United, the Supreme Court largely escapes the public scrutiny that the president or legislatures are put under. Without such public accountability, I see no reason that the pattern Chemerinsky identifies will not be repeated in the future.

[Darren Maguire · Rating 4 out of 5]

Good review of important cases throughout US history. My main takeaway is that the judges often create laws via their interpretations, they are not umpires who can see decisions in black and white. They may have lifetime appointments (so as to make them more impartial) but they still follow their own ideologies. Both sides will often use the same reasoning to dissent or approve. Supreme court definitely needs to be thought of as fallible and biased, and reforms can help mitigate this.

[Jackson · Rating 5 out of 5]

An incredible analysis and telling of the United States history through the lense of the Supreme Court. I was worried it was going to be a lot of indigestible lawyer speak but much to my delight, Chemerinsky puts these cases, and his analysis, into plain English accessible to people of any understanding of the Supreme Court and its cases. Incredibly captivating and well thought it. Highly, highly recommend to truly everyone.

[Laura Petto · Rating 5 out of 5]

Originally written in 2013 and only the forward was updated. It was so cool to see chemerinsky calling for massive change before the past five years of scotus nonsense when it became more common. Excellent argument buoyed by strong evidence. Great legal thinker and writer

[Shannon Heaton · Rating 3 out of 5]

Had I read it 10 years ago, I might have thought more highly of it. But the Court has gotten even worse over the last 10 years. Perhaps his 2024 book will catch up on some of that.

[Lance Cahill · Rating 2 out of 5]

Chemerinsky criticizes the Supreme Court as failing its central role in constraining political or economic power against political or economic minorities. The usual suspects are offered (Dred Scott; Plessy) along with cases seen as examples of the Court's role: Brown was ineffectively enforced for a decade as a result of inaction by the Court and per curiam decisions; Gideon only specified a general right to counsel and did not specify how much support government would need to provide to public defenders.

Nowhere in the book will Chemerinsky advocate a view of statutory/constitutional interpretation, other than a general view of how the Constitution is needed to protect minority rights. His defense is to partially say he has highlighted cases that liberal and conservatives should agree on and that all judges have ideologies which influence their decisions.

Chemerinsky's central assumption is that Court's can be effective channels of social change, independent of the cooperation of the other branches of government or public opinion. Chemerinsky cites, and attempts to quickly rebut, Gerald Rosenberg's thesis that the Supreme Court is constrained in its ability to influence social change. I,e. Brown was ineffective without fund termination provisions within the Civil Rights Act of 1964. I think it's unlikely to say the CRA would not have happened without Brown I and Brown II. Chemerinsky's rebuttal is not persuasive.

Chemerinsky's proposals are about as riveting as you'd expect at the conclusion of a 'passionate' speech at a meeting of the AICPA. Term limits of 18 years, live and public broadcasting of court oral arguments and opinion announcements, written explanations of denial of certiorari, plain-english explanations of decisions, and the use of judicial nominating committees for federal appellate and supreme court appointments.

This book has been written before. Chemerinsky could have added additional academic credence to the book's arguments, but other than his constant mentions, it was difficult to tell he was a professor of constitutional law (and one with a book that is on the course syllabi of most courses) given his lopsided treatment of cases.

A more entertaining, and arguably illuminating, is Peter Iron's "A People's History of the Supreme Court" (1999).

[Chris · Rating 5 out of 5]

This is a great and important book - compelling, educational, illusion-shattering, and one that should be on the reading list of law school students across the US (either during or after they have taken Constitutional Law). One of the leading textbooks on Constitutional Law is by Professor Erwin Chemerinsky, so it is safe to say that even amongst the elite few who teach constitutional law, Chemerinsky is an important authority. When he publishes a book on Constitutional Law, it is an event. When that book is titled “The Case Against the Supreme Court”, it is a major event to be noticed and reacted to by those inside and outside of the legal field.

It is quite unnerving to read the front flap of this book, where he writes ”Almost forty years a go, I decided to go to law school because I believed law was the most powerful tool for social change and that the Supreme Court was in institution in society that existed to stop discrimination and to protect people’s rights”…. I have been teaching, writing, and litigating about constitutional law for over thirty years now. I have argued cases before the Supreme Court.”

The introduction continues: “His years of studying, teaching, and practicing constitutional law have convinced him that what he believed is a fairy tale. Both historically and in the present, the Supreme Court has largely been a failure. In this devastating book, Chemerinsky show how, cases by case, for over two centuries, the Supreme Court has been far more likely to uphold government abuses of power than to stop them… We all share the perception that the Court is ‘objective’ and decides questions based on the law separate from the ideology of the justices. In fact, the Court is made up of fallible men and women who inevitably base decisions on their own biases and prejudices.”

I think this book might be used as a guidebook for litigation strategies to bring cases and issues before the court for decades to come.

[Nick · Rating 2 out of 5]

Should be called the case against the Roberts Court. Chemerinsky briefly says towards the end that he didn't intend to write a liberals case against the current Supreme Court, but he did. He is upset that education isn't a federal right and that the court has shown a reluctance to fully embrace affirmative action, two ideas that are debatable but in no way related to a criticism of the structure of the court. The books title is undermined pretty quickly, it sounds as if Chemerinsky wants to get rid of the court or at least judicial review, but he doesn't. He just wants to make the nomination process more objective, have term limits for justices, and clearly define the role of the Supreme Court to be solely a defender of minority rights. Nothing radical there, I agree with most of his suggestions. Most of his case is based on the shameful period of Jim Crow after the civil war to the civil rights era when the court after the fourteenth amendment refused to enforce equal protection. Nobody disagrees here either. what makes his account unique is arguing that today's court behaves in a similar way, at least since the Warren Court, not defending minority rights. Here he goes beyond abuses like the internment of the Japanese during World War Two to the recent decisions on the Voting Rights Act and Citizens United, as if they are clearly as evil as earlier decisions of the court upholding forced sterilization. The book can dismissed if you are not as liberal as Chemerinski.

[David · Rating 5 out of 5]

One of the most interesting, thought-provoking books I've read in a long time, Chemerinsky's thesis is a tough one to swallow, especially given its source is a legal scholar and lawyer. His basic argument is that the judiciary's most important roles are defending minority rights and protecting the rights of people against government abuses of power. He then pretty convincingly argues that, at its most important moments, the court has routinely and consistently failed at fulfilling these roles. Although I wasn't convinced by all of his examples, and although I thought his proposed reforms fell a bit short of the degree of the problems he diagnosed, this book is one that will stick with me for a long time and will influence the way I see the judiciary. While some of Chemerinsky's claims will be too radical for some readers, his underlying assertion that we should conceive of the judiciary not as John Roberts' famed "impartial umpires" who simply "call balls and strikes", but as individuals led to decisions by a complex interweaving of factors, particularly their own life experiences and biases, should be acceptable, and is an important precondition of any honest reassessment of the court and its role in a well-functioning republic.

[Mike Davis · Rating 5 out of 5]

Chemerinsky, a law professor who has argued many cases before the Supreme Court, outlines in somewhat academic fashion the history, failures and biases of the Supreme Court and offers sound suggestions regarding improvements that are bipartisan in nature. The court is seen as a group of politically chosen justices, which has shaped the decisions handed down over time and in many instances retarded justice rather than enforcing it. He makes a strong case for better selection processes of justices, better transparency and increased public access to what goes on behind the robes and curtains. This is an excellent book for anyone who has the time and patience to read it.

This book was received from the publisher in exchange for an honest review.

[Drew Reilly · Rating 4 out of 5]

When the guy who writes your constitutional law textbook makes a case against the Supreme Court, you pay attention.

[Joseph Stieb · Rating 5 out of 5]

I thought this was quite good and significantly ahead of its time, now that we live in a world with a 6-3 conservative majority on the court, which has reversed Roe and basically handed the President unchecked power. EC argues that the SC's real purpose is to be a counter-majoritarian institution. It is supposed to check against the tyranny of the majority by protecting individual rights from the government, which in a democracy is a perennial problem. Take prisoners for example: prisoners can't vote and have no political representation. Politicians and legislatures aren't going to go out of their way to spend more money on them or ensure their rights are protected. So that leaves the courts as the last resort of these parties (theoretically). The SC is also supposed to have a final word on the constitutionality of a law, although that's a practice that evolved over time rather than being embedded in the Constitution.

But the Court, EC shows, has rarely played this role. It has sided consistently with capital, white supremacy, patriarchy, and other dominant forces. It has reinforced majoritarianism rather than restrained it. There are exceptions, most notably the Warren Court, but that was an exception to the rule. EC shows that all of this was the case even before the rise of the highly selective doctrine of originalism, which conservative justices now use to make the law support their political preferences. Some of the cases he profiles are truly egregious abuses of individual rights and dignity.

Still, EC argues, we still need the Courts to play some kind of role in determining the meaning and application of the law and the Constitution. The alternative of having legislatures have the final say in the meaning of law would only add to the majoritarian dilemma. So EC recommends a number of changes to the Court to make it more accountable and "with the times." We need a systematic way of appointing justices. They should serve 18-year, non-renewable terms, ensuring that every President gets to pick 2, thereby better reflecting political cycles and the people's preferences. There should be merit-based boards that apply to the Supreme Court as well. They should communicate more clearly with the people, including televising hearings, publishing short summaries of their decisions, and avoiding shadow docket rulings that come without explanation.

These solutions, as EC admits, only go so far. There is no use pretending that the Court is an apolitical body. The law changes depending on who is interpreting it, which depends on who wins elections. EC has become even more blunt about the political nature of the Court since 2014, and there is no restoring the Court to its proper, responsible role without winning elections and, possibly, packing the Court itself.

[Steve Llano · Rating 5 out of 5]

Erwin Chemerinsky has written a fantastic book for anyone who has ever wondered if we could have a different sort of Supreme Court. Chemerinsky answers this question with a very firm yes, because the future of a democratic political order that defends rights is at stake. Chemerinsky makes his case through ample references to case law and decisions while explaining them all incredibly clearly. Anyone with a passing interest in the Constitution or in some of the major cases that the Roberts court has considered (Bush v. Gore, Citizens United, etc) will be able to understand the legal arguments Chemerinsky advances.

Most interestingly though is Chemerinsky's focus on the need of the Court to protect individual citizens and people from abuses of power. This book reads as a great argument that the function of the Supreme Court is to protect individuals from power by using the Constitution to shut down abuses of legal, criminal, financial, governmental, and employment power. I found this section of the book to be incredibly persuasive. From reading this, you can see why Chermerinsky is such a well-liked law professor. Every point he makes is communicated with force and clarity in a way that such a subject should prohibit. He's a master of the information, and it shows.

The last section of the book is also incredibly interesting as he advocates for a lot of changes to the Court that you might not predict. He gives a very good accounting of judicial review, as many have called for the elimination of that power. But Chemerinsky makes the strongest case for broadcasting Court proceedings and for more attention to varied types of Court writing aimed at different audiences. He makes an excellent argument that the Court serves so many people that merely one type of writing - the opinion or dissent - is not enough to ensure that the Court is doing its job.

I highly recommend this book. The cases are heartbreaking and the arguments have a razor edge. The analytical prose in this book is beautiful. This is a rare chance to see a master of both teaching and legal argument work with such prowess. I have a very different view of the Court after reading the book, one that is much more informed about the biases that are always in-play, and how to accept those into a system that protects us from the inevitable abuses of power that can come from any government.

[Tess · Rating 2 out of 5]

I want to say first, out of fairness, that I should not have started this book immediately after finishing my degree. This was a heavy academic read. A LOT of important issues discussed with a great amount of nuance and complexity. I think if I had waited to read this book a few months, I might have been better equipped to fully absorb it.

That being said, I did think this book was…just okay. I wrote a paper during undergrad arguing for the abolition of the Supreme Court. After a few years, I have a more nuanced view, and am not totally sold that abolition is favorable over a radical degree of reform. I was hoping this book would better inform my view and speak to some of the issues that I struggle to understand.

Well, I feel a little let down. The majority of this book is (important) history regarding case decisions and their cultural and political repercussions. I was expecting a deeper dive into solutions, and was disappointed with the (in my opinion) disproportionate structuring.

To the authors credit, Chemerinsky speaks in depth about the failings of the Court, with a keen eye on oppressive decisions that disregard the rights of minority groups and underserved communities. This is important information about our Supreme Court that I think all Americans should be aware of, and I appreciate this work for that reason. Additionally, Since this book is about a decade old, I appreciate the updated forward that speaks to some of the most recent Supreme Court failings in the years following RBG’s passing.

Overall this book did unfortunately put me in a reading slump and I almost DNFed it several times. But, some of these issues lie with me and not this work. Picked it up at a bad time, and felt let down when my own preconceived idea of this text did not come to fruition in a structure I had hoped for. While I appreciate the in depth analysis of the Court’s decision history, I expected a greater portion of this work to focus on potential solutions—which did not come until the last section of the book.

[patrick Lorelli · Rating 4 out of 5]

This is a 2014 publication and I am just getting around to reviewing. I found this book to be very interesting though I had already agreed with most of the author's ideas or what he was trying to say as far as the Supreme court has and still is looking out for business mostly big business. That has been the way it has been since the beginning of our country.
Really one just needs to think about the words all men are created equal. Yet the Supreme court in the late 1700s, 1800’s until today it is still not the case. The U.S. Government still has rules and regulations for American Indians on what percentage of blood qualifies you to be Native American. This is backed up by the Court.
I really would have liked the author to have gone into more detail with some of the cases that affected the course of our Nation and how they led to a huge change for both good and bad. For there was a time in the ’50s and early 60’s when a change was happening and the court was the cause for a lot of that change. Including laws to protect rights when getting arrested for example. The ’60s was when the court started the Miranda warning that everyone now takes for granted.
Those kinds of examples would have been nice along with how railroads and other big businesses were allowed to take land and really do whatever they wanted.
Overall the book was good. I received this book from Netgalley.com I gave it 4 stars. Follow us at www.1rad-readerreviews.com

[Gregg Parker · Rating 3 out of 5]

"Throughout history, one of the Supreme Court's greatest strengths and virtues has been the impeccable ethics of its justices."

That's an actual sentence from this book. He lays out dozens of examples showing how Supreme Court justices have ALWAYS decided cases based on their personal prejudices and made up their legal justifications after the fact, and yet when he gets to the section on reforming the court, he gives these softball "gee, maybe we should allow cameras for Supreme Court cases" ideas that wouldn't change anything.

Granted, this book was written more than a decade ago, so his appraisal of the Roberts court doesn't include some of its most disgusting decisions, but his refusal to actually suggest meaningful reform is so disappointing.

The Supreme Court needs more than term limits. It needs more than a better confirmation process. It needs more than a code of ethics. Its role needs to be completely changed so that the decisions of a few corrupt elites from Harvard and Yale can't destroy American democracy just because they pretend they're following the Constitution when, as this book shows, they are and always have been inconsistent and dishonest. And it needs to be easier for us to remove justices who do nothing but act in the service of the billionaires and Christian nationalists who are making America a terrifying place for so many vulnerable people.

[R. · Rating 4 out of 5]

Chemerinsky's "The Case Against the Supreme Court" reminds me of a story about a small village that prided itself on its timekeepers. In the center of the village was a grand clock tower with the finest and most accurate clock in all of the region. In the square near the clock tower was a renowned clock maker who made the grandest and most accurate mantle clocks most had ever seen. Every day, just before noon, the tower keep would stroll past the clock shop on his way to the clock tower and gaze at the clock maker's wares. This happened every day for years, although the tower keep never once entered the clock maker's shop, and certainly never, ever bought a clock from him. The two men always waived and smiled and were cordial, but rarely spoke; the shop keeper busy preparing to set all of his clocks to noon each day when he heard the noon time peal of the bells from the clock tower. He had great respect for the tower keep, and wanted to make sure that all of his clocks matched exactly the time on the great clock tower. Finally, one morning the clock maker decided this had gone on long enough and met the tower keep on the sidewalk. "For years, you have walked past my shop and looked at my clocks and never purchased one. Why have you not honored me by purchasing one of my clocks. Surely you know I make the finest mantle clocks in all of the region."
The tower keep responded, "Sir, you do indeed make the finest mantle clocks in the region. Your skills are unmatched. It is for this reason that I stop by your shop each day to check the time. I honor you by making sure that the clock tower matches exactly the time on your beautiful clocks."
The color drained from the clock maker's face as he realized the grave mistake that the two men had been making for countless years. The village mayor walked up on the two men while the clock maker explained their error to the tower keep. The two timekeepers were aghast, unsure how to correct their error. There were just moments to go before the clock tower struck noon. The mayor quickly settled the dispute.
"Gentlemen, I am terribly late for a meeting with very important people. I was supposed to meet them nearly an hour ago, and when the bells toll they will realize how late I have become. The future of the village rides upon the outcome of this meeting. I beg you, please re-set all of your times pieces to 11:00 a.m." Both men complied, allowing the mayor to attend the important meeting, almost on time. The time keepers did not know that, over the years as they re-set their clocks each against the other, they were almost an hour ahead of time. In re-setting to 11:00 a.m., their time pieces were not only precise, but now also displayed the correct time.
Although Chemerinsky eventually reaches some solid and arguably correct conclusions, some of his foundational assumptions seem to ignore the incrementalist tradition of American society. With a multi-layered, complex societal structure, and serving as a vastly important world-wide economic input, the United States legal system (which doubles, mostly, for the United States system of government) is not prone to the rapid, systemic changes that Chemerinsky seems to expect of the US Supreme Court. In seeking to affect social change, and prioritizing that goal over systemic legal issues, Chemerinsky falls prey to one of the most enduring charges that conservatives level at liberals: that they are far too inclined to determine the outcome they want to have, and then construct some legal justification for that outcome. While conservative justices have certainly been guilty of the same approach, Chemerinsky loses some credibility in the early chapters from this approach.
As an example, Chemerinsky's analysis and argument are at their weakest, from a legal approach, in his section dealing with Brown v. Board of Education. At the outset, all reasonable minds can agree that the Supreme Court was correct in ending segregation. But Chemerinsky chides the justices for spending so much time getting a unanimous opinion that was signed by all the sitting justices, and not nearly enough time explaining their later opinions where the Court struck down segregation in other aspects of society without issuing any opinion at all. Chemerinsky is correct that the Court should have explained itself in those actions, but he fails to consider that perhaps the Court couldn't explain its decision, because those decisions were the product of moral reasoning and not legal analysis. Chemerinsky really goes off the rails when he argues that the Court should have vastly expanded the width of the third column of government by acting as mini-regulators on issues such as desegregation planning, or by ordering funding mechanisms for public defenders.
But for these problems, Chemerinsky makes some valid, and troubling, arguments (although they are not groundbreaking by any stretch of the imagination). The Court has a history of being bound to the prevailing morality and politics of the day, resulting in bad law. The current court seems hell-bent on protecting helpless mega-corporations, while running rough-shod over civil liberties in the name of national security. There are on-going systemic problems that should be addressed with the Court, and Chemerinsky, in the final section of the book, settles down and makes some solid suggestions as to how this can be achieved. One such approach is through term-limitations for sitting justices. As Chemerinsky notes, even Governor Perry made this suggestion in his first presidential campaign, so it seems this is something liberals and conservatives alike can agree on. Chemerinsky also argues for merit-based selection of judges, although for Chemerinsky this translates into an elected judiciary. Some other merit based approach may be a good starting point, as an attorney who practices in a state with an elected judiciary, experience screams that is simply a very, very bad idea. Although he gets off to a rocky beginning with some flawed analysis, Chemerinsky has offered up a timely and well-thought out read. In short, Chemerinsky gets to the (mostly) correct conclusion, if even for some very wrong reasons.

[Sarah Melissa · Rating 5 out of 5]

I am about halfway through this book. Chemerinsky is a famous lawyer who teaches Constitutional Law at both NCCU and Duke, still, as far as I am aware. I also have the first edition of his tome on Constitutional Law, which I have not read, but which has at least today afforded me a view of the US constitution. The 2nd amendment was a sort of draft, put in context, which told people to bring their own guns.
I got both these books for free before 2009, and if you think we have it bad right now the one I am reading right now puts the thing in context. Very bad. But interestingly, very bad has always been in the context of states' rights, even to the extent of finding that a federal law which tried to limit child labor was not constitutional. This is not quite as simple as it might appear at first glance, because if states took individual decision the ones which continued to use child labor would have a significant competitive economic advantage. The courts tended to fixate on the "interstate commerce" clause of the constitution and interpret it conservatively.
And just FYI--Roosevelt appointed eight Supreme Court Justices. Think of that. What escapes me is why it took until the Warren Court to be liberal.

[Maureen · Rating 4 out of 5]

“Freedom and equality — the Constitution’s greatest aspirations— will be threatened in the future, likely in ways that we cannot now imagine. We will need a Court, perhaps desperately so, that does better than it has in the past.”

As we have seen in the past decade since this book’s publishing, they have not… The Supreme Court has very rarely acted to protect our constitutional rights. The Court is also far from the bipartisan institution they claim to be. This doesn’t come as a surprise, but Chemerinsky outlines the specific cases that make these statements true. (See Plessy v. Ferguson, Buck v. Bell, Bush v. Gore, Korematsu v. United States, Hui v. Castaneda, PLIVA Inc v. Mensing, Citizens United, etc.) There were times when the Court did aim to protect civil liberties, namely during the Warren Era. (See Brown v. Board, Gideon v. Wainwright, Reynolds v. Sims, Roe v. Wade), but these instances are too few and far between. In far too many cases, the Court sided with corporate and party interests in sacrifice of our basic rights.

[Colin Cox · Rating 4 out of 5]

Erwin Chemerinsky's The Case Against the Supreme Court is a smart introduction to the structural problems that plague the United States Supreme Court. Unlike some Supreme Court abolitionists, Chemerinsky argues the Supreme Court remains necessary, even if the court's history, with a few notable exceptions, is best understood as a failure. Like so many popular social science books, Chemerinsky ends by describing several reforms designed to mitigate the court's biggest problems.

What I like so much about Chemerinsky's book is the overarching focus on the formal composition of the court. That is to say, if we want to understand the problems with the Supreme Court, we must look beyond individual periods, judges, and decisions. Instead, we must examine the composition of the court as a formal institution. In narrative studies, form dictates content. We must adopt this axiom when attempting to understand the problems with the Supreme Court.

[John · Rating 4 out of 5]

First few chapters are a digestible, well-organized primer on constitutional law generally. Chemerinsky seems incapable of writing a bad sentence, much less a bad paragraph, and he is certainly one of the giants of contemporary Con law scholarship. Then the book begins, despite the author's best efforts, to turn into a liberal's (entirely legitimate) complaints against SCOTUS, particularly in its current state. What's interesting about reading this 2014 book in 2022 is how many of Chemerinsky's assumptions about "things liberals and conservatives all agree on" have turned out to be, to put it gently, overly optimistic. This is particularly true in criminal law and reproductive rights. Having said all that, this guy is a genius, and his plain-spoken, terse, and cogent commentary is well worth the time spent on it.

[Jacob Bailey · Rating 3 out of 5]

A great book that delves into the long history and failings of the Supreme Court of the United States (SCOTUS). It is well written with great insights into the complex legal system; however, it does become repetitive in its argument. The author makes a compelling case as to why SCOTUS is not a perfect institution and should be either limited or abolished. The issue is that every page is formatted as follows: (injustice done against someone) + (SCOTUS Case that validates this injustice). The author does an amazing job of researching and compiling an easy to read history of SCOTUS and its failings, but doesn't make the leap into a solution they want. I would have enjoyed the book much more if it had more of a multidimensional argument with why we need to abolish SCOTUS and then a solutions/replacements.