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Tuesday, October 25, 2016

Originally posted at The Washington Spectator

After 227 years of history, how should we judge the United States Supreme Court? All of my years of studying, teaching, and practicing Constitutional law have convinced me that the Supreme Court has rarely lived up to lofty expectations and far more often has upheld discrimination and even egregious violations of basic liberties.

My disappointment in the Court is historical and contemporary. Its preeminent task is to enforce the Constitution in the face of majorities that would violate it. The Court is thus especially important in protecting minorities and in safeguarding rights in times of crisis when passions cause society to lose sight of its long-term values.

For the first 78 years of American history until the ratification of the 13th Amendment in 1865, the Court enforced the institution of slavery. For 58 years, from 1896 until 1954, the Court embraced the noxious doctrine of separate but equal and approved Jim Crow laws that segregated every aspect of Southern life. Nor are egregious mistakes by the Supreme Court on race a thing of the past. The Roberts Court has furthered racial inequality by striking down efforts of school boards to desegregate schools and by declaring unconstitutional crucial provisions of the landmark Voting Rights Act of 1965.

The Court also has continually failed to stand up to majoritarian pressures in times of crisis. During World War I, individuals were imprisoned for speech that criticized the draft and the war without the slightest evidence that the expression had any adverse effect on military recruitment or the war effort. During World War II, 110,000 Japanese-Americans were uprooted from their lifelong homes and placed in what President Franklin Roosevelt referred to as “concentration camps.”

During the McCarthy era, people were imprisoned simply for teaching works by Marx and Engels, and Lenin. In all of these instances, the Court failed to enforce the Constitution. Most recently, the Roberts Court held that individuals could be criminally punished for advising foreign organizations, designated by the United States government as terrorist organizations, as to how to use the United Nations for peaceful resolution of their disputes or how to receive humanitarian assistance.

For almost 40 years, from the 1890s until 1937, the Court declared unconstitutional more than 200 federal, state, and local laws that were designed to protect workers and consumers. The Court even declared unconstitutional the first federal law designed to prevent child labor by prohibiting the shipment in interstate commerce of goods made by child labor. Minimum-wage and maximum-hour laws were frequently invalidated.

Even the areas of the Supreme Court’s triumphs, like Brown v. Board of Education and Gideon v. Wainwright, accomplished less than it might seem. American public schools remain racially separate and terribly unequal. Criminal defendants in so many parts of the country, including in death-penalty cases, have grossly inadequate lawyers.

The Court’s decisions from the last few years — preventing employment discrimination suits and class actions against large corporations, keeping those injured by misconduct of generic drug makers from having any recovery, denying remedies to those unjustly convicted and detained — illustrate what has historically been true: The Court is far more likely to rule in favor of corporations than workers or consumers; it is far more likely to uphold abuses of government power than to stop them.

What should we do about it?

Some scholars urge the abandonment of judicial review, but I reject that conclusion. The limits of the Constitution are meaningful only if there are courts to enforce them. For those I have represented over my career — prisoners, criminal defendants, homeless individuals, a Guantánamo detainee — it is the courts or nothing.

But I believe that there are many reforms that can make the Court better and, taken together, make it less likely that it will so badly fail in the future. I propose a host of changes, including instituting merit selection of court justices, creating a more meaningful confirmation process, establishing term limits for court justices, changing the Court’s communications (that is, televising its proceedings), and applying ethics rules to the court justices.

The Supreme Court’s decisions affect each of us, often in the most important and intimate aspects of our lives. I think that we need to focus on the Court’s long-term and historical performance. If we do, it is a disturbing picture and there is only one possible verdict: The Court is guilty of failing to adequately enforce the Constitution.

But it can and must get better in the years and decades ahead.

Photo: Matt H. Wade via Wikimedia Commons


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  • dana becker

    Good luck with that. They are bought and paid for for the most part and any left with integrity will not prevail.

  • Independent1

    I’m not fully aware of what the process would be to implement changes to the Supreme Court as suggested by Erwin Chemerinsky, but I certainly concur with his recommendations, especially the need for implementing term limits for judges. The Roberts Court has made it abundantly clear that any notion that our founding fathers may have had that Supreme Court judges would apply the Constitution with nonpartisan thinking, was wishful thinking on their part.

    Life terms for judges may have been acceptable when our forefathers were crafting the Constitution, but we need to remember that back then, the average lifespan of an American was around 40 years. With the increases in life expectancy that have been brought about over the past 100 years, some supreme court judges have been on the Supreme Court for several decades. And as Jamal Greene wrote in his article published in the NYTimes back in 2012: “In a democracy, no one person should wield so much power for so long.”

    Jamal Greene was a former clerk for Justice John Paul Stevens who retired some years ago. And I particularly like a term limit proposal that he points out in his article that was proposed by Professors Steven Calabresi and James Lindgren: “replace the current system of Supreme Court appointments with nonrenewable 18-year terms, with one new justice every odd numbered year.”

    Jamal concludes his article with this paragraph: “Eighteen years would mean that a justice’s tenure would be long enough to ensure independence from political patronage. As important, it would be short enough to ensure that we remain a country of laws and not of men.”

    And I couldn’t agree more.

    • Allan Richardson

      As has been pointed out elsewhere, the doctrine of judicial review was assumed by the court in Marbury v Madison, but was not written into the Constitution, which says NOTHING about how to arrive at a legally enforceable decision on whether a law passed by Congress or a state legislature violates the Constitution. The framers may have expected that, despite having strong partisan views, the legislative leaders involved, or the President or governor who is charged with enforcing the laws, would have the INTEGRITY when confronted with an obvious objection to a law, to VOLUNTARILY repeal or refuse to enforce that law, and that all legislators and executives involved, whether they liked the law or not, would abide by that. Something like the tradition that golfers put their scores down honestly, and accept disqualification if they themselves discover even an honest error in scoring.

      Obviously, that never worked. If a Constitution means anything, a law that continues to be enforced, and is never repealed, despite the obvious fact that it is blatantly unconstitutional, must have some way of being nullified, and not by the states that don’t like it! There must be a final arbiter, and arbiters of the meanings of law are, by definition, courts. Some nations actually have a separate Constitutional Court to determine these questions; since our own Constitution was the first in modern times, the job has defaulted to the highest federal court in the land, the Supreme Court.

      The only authority higher than the Supremes is, in theory, the people. Perhaps the Constitution should have a clause that, when the Supreme Court is handed a case disputing the validity of a law, they MUST write up a summary of opinions for and against, and HOLD A NATIONAL REFERENDUM at the next scheduled election, or immediately if it is a critical case, but in any event not TOO soon for the voters to study the pros and cons.

      Of course, that would have resulted in the reverse outcome in Brown v Topeka and other cases, unless voters took the time to read the summaries of both sides and make an informed choice.

      • Independent1

        Okay. But given that the Supreme Court has been doing a lousy job, especially in the past couple decades, of interpreting the Constitution in a non partisan way, are you familiar with what process America would need to go through to make the changes some are recommending to the processes and structure of the Court?

        • Allan Richardson

          I suggested in a post on a related article that the author’s suggestions of merit retention, 18 year staggered terms, and a “jury duty” system of appointing a panel of judges by lot from a bipartisan pool of RETIRED lower court judges and lawyers evenly chosen from around the country, all would be reasonable suggestions; although they obviously contradict one another, any one of them should help to some extent.

          The problem with staggered terms is that each seat on the Court would have its designated expiration date, so that a President who appoints a replacement for one who dies, retires, or gets caught in an ethics scandal may be appointing that justice for a very short or very long term. Still, a similar system works for Congressional and Senate seats. And of course, the initial allocation of seats, if this is ever adopted, is an issue. Should the longest initial term (18 years after the starting year) go to the least senior and the shortest (2 years after the starting year) to the most senior justice? Or should the initial terms be chosen by lot?

          Merit retention works for a number of states, such as Florida, so that judges do not have to “politic” against one another, only to retain their seats. There is, however, the fact that a true grass roots movement (or a “Faux Astroturf” movement financed by a big money interest) can CREATE a false “scandal” to get rid of a judge ONLY because those people do not like ONE of the judge’s decisions on ideological grounds, or because he/she will NOT “play ball” and rule in favor of that interest group. If, however, the original selection committee were impartial and broadly based, and had enough turnover, and if they only presented the executive with a single name AFTER a vacancy opened up, special interests wanting to get rid of a good, fair minded judge would run the risk of getting a WORSE (from their viewpoint) judge afterward.

          One suggestion is that, rather than having the permanent Supreme Court rule on questions of the constitutionality of a law, they would rule ONLY on questions where the law(s) involved are clear and there was a question about the facts or the proper application of the law(s). Whenever the actual possibility of nullifying a law passed by Congress or a lower legislative body exists, they would pull a “jury of judges” BY LOT from a pool of qualified legal minds (retired judges and retired attorneys) with no business interest in that case, using a high level “voir dire” process to make sure they can be impartial, then give them the time to publish a calendar, hear arguments and form an opinion on that ONE case. No judge would be allowed to hear more than one case in a certain number of years (eight might be a good idea). That way, the Supreme Court’s knowledge and expertise would still be indirectly making the decision, but through a jury, much as a regular trial uses both a judge and a jury.

          I’m open to other suggestions. I did propose a “supreme jury of citizens” similar to the above, but not requiring the judges to be LAWYERS, only to pass an impartially administered exam on basic legal principles. I also suggested possibly having the Supreme Court turn each critical constitutionality case into an “executive summary” for citizens to read, and submit that to a referendum, but then I realized that putting the basic RIGHTS of one group of people up to a vote of another group is how we got some of our problems (such as slavery) to begin with.

          All of these changes, of course, would require a Constitutional Amendment, which makes them all the more difficult to achieve. The best “quick” fix would be to elect Congressmen and Senators who would actually ENFORCE the conflict of interest rules which the Supremes enforce on all the LOWER courts but not on THEMSELVES, as typified by Clarence Thomas, whose wife is a PAID LOBBYIST against abortion rights, NEVER recusing himself from any abortion law case. Other examples probably exist, but I am not aware of them; Thomas is the most obvious one.

          I welcome your ideas as well, independent1. As President Lyndon Johnson used to say, quoting the Bible, “Come, let us reason together.”

  • Eleanore Whitaker

    The Constitution provides for impeachment of Supreme Court judges. The problem with that is that the party in “power” (a word I loathe when it comes to politics) influences whether or not a Supreme Court judge “will” be impeached. Americans detest the present Roberts courts and especially Scalia. Scalia is unworthy to be a member of that court. He refuses to read and interpret “law” without infusing it with his backward ultra conservative ideology. He knows the difference between reading and interpreting law and reading and interpreting through the prism of his ideology. He just refuses like all conservatives usually do to act in an unbiased manner.

    Unbaised is not a word that can be applied to today’s extremist conservatives. Gohmert is a perfect example of what goes so wrong when extremist ideologues get in too thick with all the wrong elements. You get a biased government. Biased government has NO place in a democracy of the people, for the people, by the people. Particularly when the Roberts courts insists upon deliberately misinterpreting the common definition of the word “people,” in a manner that allows corporations to be called “people” who cannot be held responsible for their actions as “human” people are.

  • jamesowens

    it has gotten that way same as the senate and congress- MONEY- they are bought and paid for by the 1% who wish to change all laws to benefit them and to hell with the rest of America- GE -Pillsbury -koch brothers -etc all are based overseas to prevent paying US taxes yet they wield more power in the US because they can by legislature to vote their way on everything

    • dpaano

      It’s just one of the GOP’s ways of getting to an “imperial government” run by rightwing zealots!!! Heaven help us if they elect a republican president in 2016!!!

  • latebloomingrandma

    I would not like to see court hearings televised. Though many feel that would add transparency, in this day and age of twitter and You Tube and the steady reality show diet, televising would cheapen the work of the court. They need to be able to probe and ask serious questions. I can see more posturing and play acting before the cameras. Not a good idea.

    • Allan Richardson

      Perhaps the “televising” could be personality-proofed by having simple, non-emotion-grabbing avatars for each justice and lawyer reciting the words from the day’s transcript in a computer generated voice. The public could then judge the WORDS of each person without actually SEEING their faces and hearing their VOICES and expressions. And since each day’s arguments are transcribed anyway, a computer program could be written that, fed the transcript (with some help to locate each person’s position in the room), could produce this video automatically, eliminating any bias.

  • Elliot J. Stamler

    Dean Chemerinsky’s two suggestions of merit appointments and term limits are in the former case, politically impossible and in the latter case very unwise even if it were possible to gain passage of a constitutional amendment and then ratification by the states. As has been pointed out numerous times by political scientists who study the court, in this country virtually all highly contentious politically charged issues eventually become litigated cases in the Supreme Court. Since judicial philosophy is a key element in each justice’s thinking I do not know of any way any group of humans could assure that a nominee was “merited” in the sense of being immune to or isolated from whatever the judicial philosophy of the nominee presumably was. As to term limits any attempt to get that through would in practical terms lead those who want the abrogation of judicial review and reversal of Marbury v Madison and who in Congress have been consistently introducing constitutional amendments to do just that would promptly substitute that for the term limit proposal. That dangerous idea-legislative ability to override the court’s decisions was first pushed by the execrable Edwin Meese over 30 years ago and especially pushed in Congress by the House Majority Leader, Tom DeLay.
    Over the course of time on the whole the Court has done quite well protecting our liberties and upholding the constitution, Dean Chemerinsky is a left-wing version of the right-wingers both of whom want precisely what Justice Holmes declared more than a century ago: judges who agree with THEM and only that.

  • Gary Miles

    The Constitution is a fairly straight forward document. The simple job of determining what the Federal govt can and can’t do is also fairly straight forward, although many will debate that. I actually agree to the premise that the SCOTUS has failed in doing what is asked of them. The solution to this will have as many opinions as the SCOTUS have failed decisions. I wouldn’t expect anything to change in our lifetimes, sans some crazy event like a complete societal meltdown.

    • Grannysmovin

      I agree in part with what you say the problem is SCOTUS has become an extension of the political parties. In addition to term limits, they should have to adopt a code of ethics and adhere to them, like every other Judge in this Country. I also think it should reflect only 3 members that are Democrats, 3 members that are Republicans and break the other three between Independents and Liberaterians. Perhaps than they would leave their polictics and religious beliefs at the door and rule solely on the laws of our land and the Constitution. In addition, it seems our law makers need to stop writing the laws with verbage that is or can be construed as ambiguous.

      • Gary Miles

        Very, very well said! (smiley face). This is one compromise I can accept. At least it has possibilities. I thought of suggesting some tweeks, but in the name of compromise, let’s go with! Call the Whitehouse Granny, LOL

        • Grannysmovin

          Possibilities are good and we can work out the bugs, and it is bi-partisan. The White House has me on ignore as well as every leading Democrat, a few Republicsans as well. – Have a great day.

          • Gary Miles

            LMAO! You have a wonderful day yourself!

  • Whatmeworry

    A simple test of would be Federal judges should be given to show that they have read and understand the constitution is a quick fix. That way incompetent practitioners like Kagen, Sodajerk and Ginsburg would be weeded out

    • Daniel Max Ketter

      I guess you wouldn’t pass that test either

    • Allan Richardson

      Apparently the word “incompetent” means “disagreeing with you or your paymasters.”

      • Whatmeworry

        People have disagreed with me because I am incompetent

        • Allan Richardson

          I give you points for humor, What. People have also disagreed with me because I was incompetent on some subject at the time, but I would never imply that you were incompetent only BECAUSE you disagree with me. I happen to believe that the three justices you “named” are as competent as the rest, and you disagree; that’s fine.

          But I’m not sure that a test on “understanding” the Constitution would “weed out” any of the justices, because all of them would pass a test only on the objective FACTS about it. Where they disagree (or say they do) in in their interpretation, and some of them appear to change their interpretation to fit the interests of their moneyed interests, and no fairly written and fairly administered test can catch that.

          I do have some constructive ideas which I have posted on other articles and elsewhere on this one, which you may want to read. Perhaps we could get some public discussion on some of those beyond the Disqus blogs on the internet?

          — merit retention: two years after first confirmation, and every two (or some other number) years after that, submit a yes/no question to the voters, whether to retain him or her; yes vote, start the clock for the next retention vote, no vote, instant vacancy for the President to fill.

          — a “jury of judges” (not necessarily attorneys, but objectively competent citizens who pass a test) chosen from a pool by lot, screened for conflict of interest by the regular justices in a “void dire” type of proceeding, then put to work on a single case.

          — staggered 18 year terms with one expiring every two years, allowing (almost) every President the chance to nominate a justice; possibly combine with the two year merit retention?

          What do you think?

          • Whatmeworry

            another lib who has read the constitution, its written at a 12th grade level and is the reason why I can’t understand it

      • Whatmeworry

        another lib who has never read the constitution, its written at a 12th grade level and is the reason why libs can’t understand it

  • Budjob

    The Supreme court would appear on the surface to be a Constitutional Monarchy,without the constitution being the first and,foremost priority.And let us not forget the one and only potted plant ever “appointed’ to sit on the court.Clarence Thomas,one that has never written an opinion on anything!

    • jif6360

      I think he disagrees with most of their DICISION that y he’s never written an opinion.

  • Whatmeworry

    A simple test of would be Federal judges should be given to show that
    they have read and understand the constitution is a quick fix. That way competent practitioners like Kagen, Sodajerk and Ginsburg would not be
    weeded out

  • jif6360

    The constitution is not that hard to understand. Our court work very hard to find ways around it. As it stand today the constitution is meaningless.

  • jif6360
  • idamag

    Maybe we should have an ad hoc supreme court and when they are needed, draw names from judges around the country. As it is, the court is owned by the same people who own Congress.

    • Allan Richardson

      Supreme Jury? That sounds like a good idea, although we would need some way to ensure that these judges are not influenced by donors to their “day jobs,” that is, the judgeships they already hold. Perhaps a TRUE jury system, in which any citizen who can pass an IMPARTIALLY administered legal literacy test, but who is not a lawyer or judge by profession, can volunteer to join the pool, and the panel for a given time period, or for a given major case, would be chosen BY LOT, with no repeats for, say, eight years. Of course, provisions would have to be made for logistical support of these citizens during the court session, for example a government run hotel (call it a “dormitory” to appease the budget cutters) to house them and such family members as they must bring along. I would think that 50 citizens (possibly one from each state whenever feasible, but when a state has no qualified volunteers, the nearest bordering state would supply a substitute) would be enough for a true cross section of views, and the deliberations would be charged to consider FIRST the legality of the laws under the Constitution, and ONLY as a “tie breaker” their effect on the ideals expressed in the Preamble as the juror understands them.

      If we are to continue to have professional judges “permanently” assigned to the Supreme Court, we ought to have either a long but definite term (with staggered renomination dates), or a way to ENFORCE the conflict of interest rules which seem to be ignored routinely. As one of the most egregious examples, not only is Clarence Thomas a devout member of a church which opposes abortion even to save the woman’s life (as are a majority of today’s justices: 6 Catholics and 3 Jews, no non-Catholic Christians (i.e. Protestants), who are the majority of the citizens), but his WIFE has been employed as a PAID LOBBYIST for an extreme anti-abortion group for the ENTIRE TIME he has sat on the Court, and NOT ONCE has he voluntarily recused himself from ruling on ANY abortion related case, as the ethical rules say he MUST, but there is no enforcement mechanism except impeachment (which is difficult enough, as it should be, for an official of the Congressional minority party, and not even to be considered for an official of, or appointed by, the majority party). Perhaps we need a special rule for this particular court, in which a petition by a certain number of CITIZENS would trigger a trial in the Senate for violation of rules of judicial ethics. OR merit retention.

      The merit retention idea, which would be easier to administer, is in use in several states in various forms (Florida, for example). First, a nominating committee of qualified lawyers (actually, citizens at large would be better) examines the resumes of judges and picks a slate of possible judge candidates, publishing a summary of the pros and cons of each one, and repeating these deliberations whenever the pool of candidates gets too small (either by appointment to a judgeship, change of mind, death, disability, or conviction of a felony); the governor (President, in the proposed SCOTUS plan) would name someone, the Senate would confirm, and after an initial two year term, and six or eight years thereafter, the name would appear on a ballot for retention (yes or no, with the understanding that NO potential replacement has been chosen).

      The upside of yes/no retention is that voters generally vote yes unless there has been a great deal of negative publicity (in other words, SCANDAL) about a sitting judge. The downside is that such a flood of negative publicity can be (and in Florida, has been) directed by a well financed lobbying group who oppose the judge’s prior, or likely future, ruling on one issue, requiring the judge or his supporters to campaign for his retention, but without saying he has any preconceived views on an issue (in fact, saying he will decide such a case impartially).