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The Case Against the Supreme Court

de Erwin Chemerinsky

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Most Americans share the perception that the Supreme Court is objective, but Erwin Chemerinsky, one of the country's leading constitutional lawyers, shows that this is nonsense and always has been. The Court is made up of fallible individuals who base decisions on their own biases. Today, the Roberts Court is promoting a conservative agenda under the guise of following a neutral methodology, but notorious decisions, such as Bush vs. Gore and United Citizens, are hardly recent exceptions. This devastating book details, case by case, how the Court has largely failed throughout American history at its most important tasks and at the most important times. Only someone of Chemerinsky's stature and breadth of knowledge could take on this controversial topic. Powerfully arguing for term limits for justices and a reassessment of the institution as a whole. The Case Against the Supreme Court is a timely and important book that will be widely read and cited for decades to come.… (més)
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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. ( )
  vhl219 | Jun 1, 2019 |
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. ( )
  mldavis2 | Oct 25, 2014 |
For most Americans and for most observers worldwide, the US Supreme Court is a sacred, shining, untouchable, pure, dependable defender of the law, and by extension, of the people. According to Erwin Chemerinsky, nothing could be farther from the truth. Through a shameful history of case law, The Case Against The Supreme Court shows justices determining the functioning of society through their own lenses, religion, and political bents. When the law is inconvenient, they simply ignore it, or worse, declare it unconstitutional and dispense with it altogether. They have often made it literally impossible for people to sue at all, despite Congress passing laws specifically concerning their rights. The Court isolates those laws and makes them unattainable, either through prerequisite conditions that can never be fulfilled, or by granting immunity to the perpetrators, or by declaring the law’s intent as something diametrically opposed to what Congress clearly intended. Sometimes the Court has simply interpreted that very law as if it were written to favor business instead of the citizen, often a stretch. Unfortunately, their word is final, and again, Congress be damned. It is a juicy, meaty read, as well as shameful, embarrassing and depressing.

Chemerinsky cites an early justice (Marshall) to the effect that the primary reason for having a Supreme Court is to enforce the constitution against the will of the majority. It is to protect minorities who don’t have political clout, and protect against the majority imposing repressive actions. Unfortunately, justices are human, with prejudices and baggage, and once in power, they often seek to please themselves rather than interpret the case and the relevant laws. Unfortunately too, they are the last stop, report to no one, are completely unaccountable, and appointed for life.

Because there is so much data, Chemerinsky focuses on three principles: race, civil rights in times of crisis, and government regulation. He examines those kinds of decisions in various eras. His structure is classical: tell them what you’re going to say, say it, and tell them what you said. This makes the book a little pedantic, not to mention longer, but everything is unambiguous – unlike many Supreme Court decisions. He details the runup to the cases, the decision and the dissents, but mostly the impact on society and our laws.

There is debate about the current (Roberts) Court being among the worst, if not the worst, ever. Chemerinsky profiles an even worse Court, the Holmes Court, and the period from 1890-1937. That Court made up constitutional rights, like the “Freedom of Contract”, and used it to nullify over 200 laws that were passed to protect labor, consumers, and civil rights. Compare this to the period 1803-57, when not a single law was declared unconstitutional by the Court. The Roberts Court has invented Equal State Sovereignty, a fictitious constitutional right that prevents the federal government from dealing with different states as needed. It is a common disease of making the rules instead of applying them, a Supreme Court specialty, because no other court could get away with it.

It is easy to think the USA is built on a solid foundation of rights. But until 1933, people could be tried in state courts, convicted and executed without any legal representation at all, because the Supreme Court said the Bill of Rights only applied to the federal government, and not the people. Even Freedom of Speech – purely a government right. It has been a difficult slog to get as far as we have, and credit is due mostly to the Warren Court of the 1950s-70s, the way Chemerinsky details legal history.

The Supreme Court seems never to have liked victims: “The decision reflects the majority’s bias in favor of business and its skepticism, if not hostility towards employment discrimination plaintiffs” is a result you see over and over in the book. The Court also hands out immunity at will, so that victims cannot sue the police, the state, civil servants or their agents at all. Police can lie in court with impunity, guards have denied medical treatment to detainees until death, and judges have ordered sterilizations without fear of reprisal. Immunity is usually absolute.

As I read this litany of failure, it became clear that Supreme Court judges need to be chosen not by the president for their political usefulness, religion or ideology, but by their peers. They should be chosen for their skills on a balanced bench, not for their ideology. Particularly since they report to no one. And Chemerinsky goes there towards the end, citing Jimmy Carter’s nominating committees. They gave a huge boost to minorities and the overall quality of judges, because judges know their coworkers far better than senators do. Unfortunately, Ronald Reagan immediately ditched that process in favor of partisan nominations. It would take a constitutional amendment to make it mandatory, something no one can even contemplate in our poisonous atmosphere.

Chemerinsky, who has lived and breathed Supreme Court all his life, prescribes a litany of simple changes, all common sense, all helpful, and none controversial, that would make communications clearer and bring a better understanding of this important institution to everyone. After Bush v. Gore, Citizens United and other mystifying, destructive decisions, the Court’s reputation could use a burnishing. But this Court has no will to open up. It’s absolute power corrupting absolutely, and the country is being remade once again, in their image. They aren’t there for you. Or even the law.

David Wineberg ( )
2 vota DavidWineberg | Jul 23, 2014 |
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Wikipedia en anglès (1)

Most Americans share the perception that the Supreme Court is objective, but Erwin Chemerinsky, one of the country's leading constitutional lawyers, shows that this is nonsense and always has been. The Court is made up of fallible individuals who base decisions on their own biases. Today, the Roberts Court is promoting a conservative agenda under the guise of following a neutral methodology, but notorious decisions, such as Bush vs. Gore and United Citizens, are hardly recent exceptions. This devastating book details, case by case, how the Court has largely failed throughout American history at its most important tasks and at the most important times. Only someone of Chemerinsky's stature and breadth of knowledge could take on this controversial topic. Powerfully arguing for term limits for justices and a reassessment of the institution as a whole. The Case Against the Supreme Court is a timely and important book that will be widely read and cited for decades to come.

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