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Tuesday, October 25, 2016

In order to protect the rights of all citizens, the Supreme Court must rule objectively, without the partisan biases that plague the other branches of government. But according to University of California School of Law dean Erwin Chemerinsky, the system is broken.

In his new book, The Case Against the Supreme CourtChemerinsky takes the high court’s justices to task for failing the American people, and argues for several reforms — including the imposition of term limits — to save our legal system.

In the excerpt below, Chemerinsky examines one of the Supreme Court’s greatest failures: allowing the voting rights of racial minorities to be limited.

You can purchase the full book here.

The Nixon appointees and the conservative justices who subsequently came onto the Court over the next thirty-five years—including Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito—have greatly limited the use of the Constitution, and even of government, to achieve racial equality. Two important examples of this are the Court’s refusal to allow equal protection challenges based on a law’s discriminatory effect against racial minorities and the Court’s significantly limiting the ability of the government to use race to benefit racial minorities.

Before explaining this, I should pause to acknowledge that while virtually everyone agrees that decisions such as Prigg, Dred Scott, and Plessy were tragically wrong, there is no consensus that the Court’s race decisions since 1971 have often been misguided. Here, liberals and conservatives disagree. But I would argue that the Court’s view of equal protection—simultaneously cramped when racial minorities attempt to use it to challenge discrimination and expansive when whites use it to object to affirmative action—has been a serious obstacle to achieving greater racial equality.

Some laws that are facially race neutral—that is, laws that don’t mention race—are administered in a manner that discriminates against minorities or has a disproportionate impact upon them. The Supreme Court has made it almost impossible to challenge such laws as violating equal protection and has held that there must be proof of a discriminatory purpose in order for such laws to be declared unconstitutional. This often makes it impossible to challenge government actions that have the clear effect of disadvantaging racial minorities. Especially now that legislators rarely openly express racism, it is very difficult—and often impossible— to challenge government actions that greatly disadvantage racial minorities.

Washington v. Davis, in 1976, was a key case articulating this limit on the ability to use the Equal Protection Clause to challenge race discrimination. Applicants for the police force in Washington, D.C., were required to pass a test, and statistics revealed that blacks failed the examination much more often than whites. Because of the long history of disparities in education, standardized tests often have a discriminatory impact on racial minorities. Frequently they have no relationship to the job tasks involved in the position for which they are used to screen applicants. The effect is to significantly disadvantage minorities in hiring.

The Supreme Court, however, held that proof of this discriminatory impact was insufficient, by itself, to show the existence of race discrimination or to provide a basis for a challenge under equal protection. Justice Byron White, writing for the majority, said that discriminatory impact “[s]tanding alone . . . does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.”

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Many times the Court has reaffirmed this principle that discriminatory impact is not sufficient to prove a racial classification, and the clear effect has been to uphold laws that greatly harm racial minorities. For example, in Mobile v. Bolden, in 1980, the Supreme Court held that an election system that had the impact of disadvantaging minorities was not to be deemed to violate equal protection unless there was proof of a discriminatory purpose. The case involved a challenge to Mobile, Alabama’s use of an at-large election for its city council. Mobile had a three-person city council. It might have, but didn’t, divide the city into three election districts. Instead it had an at-large election, in which every voter cast three votes for the three-person city council.

The city was predominantly white but had a sizable African American population. The long history of racially polarized voting in Mobile meant that only whites were elected in the at-large system. In fact, not one African American was elected to the Mobile city council in the twentieth century. Mobile, of course, like the state in which it is located, has a long history of race discrimination. Nonetheless, the Supreme Court found no equal protection violation because there was not sufficient evidence of a discriminatory purpose. The Court declared: “[O]nly if there is purposeful discrimination can there be a violation of the Equal Protection Clause. . . . [T]his principle applies to claims of racial discrimination affecting voting just as it does to other claims of racial discrimination.” Election systems like Mobile’s, which significantly disadvantage minority voters, are thus rendered immune from constitutional challenge.

Similarly, in McCleskey v. Kemp, in 1987, the Supreme Court held that proof of discriminatory impact in the administration of the death penalty was insufficient to show an equal protection violation. Warren McCleskey, an African American man, was convicted of murder and sentenced to death in Georgia. Statistics powerfully demonstrated racial inequality in the imposition of capital punishment in that state. A study conducted by University of Iowa law professor David Baldus found that the death penalty was imposed in 22 percent of the cases involving black defendants and white victims; in 8 percent of the cases involving white defendants and white victims; in 1 percent of the cases involving black defendants and black victims; and in 3 percent of the cases involving white defendants and black victims. Baldus found that “prosecutors sought the death penalty in 70 percent of the cases involving black defendants and white victims; 15 percent of the cases involving black defendants and black victims; and 19 percent of the cases involving white defendants and black victims.” After adjusting for many other variables, Baldus concluded that “defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks.”

Studies across the country constantly show that the death penalty is administered in a racially discriminatory manner. Prosecutors are more likely to seek the death penalty and juries are more likely to impose it when the defendant is African American or Latino.

If you enjoyed this excerpt, purchase the full book here.

From The Case Against the Supreme Court by Erwin Chemerinsky. Reprinted by arrangement with Viking, a member of Penguin Random House. Copyright © Erwin Chemerinsky, 2014.

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Copyright 2014 The National Memo
  • bckrd1

    The conservatives on the court need to be impeached. They are wholly owned by the Kochs and have sold us out.

    • joe schmo

      OMG….are you for real…..The sky is falling, the sky is falling and it’s all because of the Koch’s……LOL

      • Buford2k11

        He is correct…they have all the appearances of being quid pro quo corrupt…they attended the Koch boys summit, and who knows what offshore account the money was deposited in…the Fab Five are as corrupt as money can buy…

        • Joe T


          • Buford2k11

            Ok, but it is Bull Shit…one U, two L’s…and the corruption is still there…

          • Joe T

            Show me a printed news item etc that they are corrupt, and I will agree with you; also I misspelled on purpose…..why?

          • charleo1
          • joe schmo

            Don’t fall for their inept stupidity. They will call you on the smallest things. That’s all they have because they are small minded….:)

          • charleo1

            So, I’m guessing you’re a corporation, and have as big a bank account to blast your free speech thru as big a bull horn, as Charles, and David Koch? If not, then 5 of the 9 Justices don’t care much what you’ve got to say. And, I think it’s a fair bet, 100% of the politicians who’s campaigns are funded by the Koch’s various political pacs, don’t care either. It really is all about them, and what they say, that gets heard, that’s important. Now if you are inclined to suppose, that you, and these two born rich dudes, worth about 100 billion between them, have a whole in common with you. And share a common vision with you, about the kind of Country you, and your kids will live and work in. Swell! Because, that’s just the kind of place the Koch bought politicians will create, and you’re all good with that? If so, you can relax. You’re winning! They don’t care what I think, either. Anymore than they care if you agree with them, or not. So, as far as the Court, and the Koch Bros. are concerned, we can both just stop thinking, or voting, or giving a damn. It don’t matter anyhow, right? They’ve got the bucks, and they call the shots, and you trust them implicitly Well then, let’s just face facts. That don’t matter to them either. They don’t care if you do, or don’t. And you’re good with that.

          • joe schmo

            How many times have I included this article in my posts…. The new 1% are no longer people like the Koch’s it’s the new ‘enlightened’ Liberal. You know the kind that merely sit on their asses making money off of social programs and the poor. They ARE NOT looking out for the best interest of the PEOPLE of this Country. They are only looking out for yours truly…. When will you people wake up! ….and in case you didn’t know this not only have the Koch’s contributed to Hospitals and Museums, they just gave 25 million to the Negro College Fund. So stick it!


          • charleo1

            Sure Joe, the poor are running America. It must be why so many are joining the ranks at the bottom. It’s
            a really great life they have. Making minimum wage, living in, “exciting,” neighborhoods, and feeding a
            family of 4 on $150 a month, in food stamps. While the individual fortunes of Charles, & David Koch have doubled since the Kenyan Socialist, Obama took office. Philanthropy is great. And a great tax write off. But, raising the poor out of poverty, it doesn’t. Feeding, housing, and providing opportunities, and a way out of poverty, is much like our government. Too important to leave to the whims of billionaires.

          • joe schmo

            Did I even say that? Do you really think that Conservatives or, for that matter, any American is that cruel. If you don’t reallize by now that Americans as a whole are very compassionate and generous towards people who are REALLY downtrodden, then apparently you haven’t learned a thing about most Americans. This is how most of you people paint Conservatives and, frankly, it’s nuts. Yes, some poor do take advantage of the system that gives poor people the incentive to leave the ghetto, but how many of those people really exist? It’s just too easy to stay there and get government handouts.

            Americans are becoming the poor, thanks to your sides stringent rules and regulations, the blatant attacks on our Constitution and Amendments, and the Libs decadent and unGodly viewpoint.

            I cannot believe that you can stand behind a man who is so against the 1) Constitution and 2) citizens of his, supposed, own Country. Obviously, he doesn’t think much of us. Apologizing for Americas success…..give me a break. Something is so wrong with that picture.

          • charleo1

            You ask if I really think some Americans are that cruel? And I say, you had better believe it. And the majority are butt holes, who aren’t but a couple of paychecks away from being destitute themselves. As if you don’t know it. You listen to that RW crapola all the time, so don’t tell me you don’t hear helping the poor compared to feeding stray animals, or how good the poor have it, at the hard working tax payer’s expense. Who by the way, just happen to be rich Republicans, who we should really let write their own rules. Since they’re the only ones who pay taxes anyway. Isn’t that how it goes? But, the reality is, the majority of Republicans don’t pay any Federal taxes either. So, who do they think they are really talking about? I know, just the Blacks, and Mexicans. There are pockets of poverty in this Country, like Harlan County KY. Where half the population depends on food stamps, and disability payments. And have depended on some kind of Federal assistance for the last 50 years. Exactly the programs these T-Party Republican politicians they’re voting for, are saying they want to end. To cut those, “other no accounts off the dole.” Sure, they’re telling them, the poverty you grew up in, that your parents, and grandparents lived in, is somebody else’s fault. Today it’s Obama, before that it was Clinton. And, FDR was spending us into oblivion before that. The thing about the Right, is they haven’t changed their message in more than 150 years. Only how they package it. Why? Because they still work for the same small minority at the top they always have. While laying off the poverty caused by handing the store over to the super wealthy, on the other Party. Just like they did in 2008. When their Wall Street real estate scam blew up the economy. Blame? Responsibility? They’ll accept none of it, ever! Blame is for anyone, or anything, they think people might believe, even God. The preacher tells them they are poor,because God is punishing the Country. Why? Because, the liberals are letting the Communist take over. Remember that one? They’re still using it. Or, elite liberal judges made abortion legal. Or we’re a decadent Country where women are taking birth control, and engaging in fornication. And before that, it was legalizing mixed race marriages. Today, it’s the Gays, and so on. You know, one of your excuses. Same old, same old. When the facts are, for a few prosperous years, after the American people threw the discredited GOP out after the Great Depression. The economy enjoyed the largest expansion of wealth, where more people were financially empowered, than at any time, in any economy, in the history of mankind. Vietnam re opened the door for Republicans in ’68. And, in a relatively short time, once again we have millions of people on minimum wage. The majority are once again, working longer, and harder, with less to show for it, than anytime in the last 50 years. The economy has no punch. Not enough demand to create enough opportunities. Because once again, the majority of the wealth created, is funneled straight to the top. And just as in the 1920, the wealth disparity between the few fortunate wealthy, and everyone else, continues to grow larger, and wider. I’ll reveal something to you I don’t usually say. But, I retired at 49. I profit from these top down policies. But, I know they are pure poison for the Country in the long run. And no, these guys like the Koch Bros. aren’t interested in making more money. They are interested in setting up a system that put people like them in perpetual power. They’ll not live long enough to enjoys much of that. But it is the legacy they very much want to leave behind.

          • joe schmo

            Do you really know who is giving to charity and aiding the poor nowadays? I really don’t think you do….. In case I haven’t mentioned it before….it’s the shrinking middle class church goers. You know the people you would love to hate.

            Also….from John Stossel

            Progressives say, if you’re so worried about the deficit, raise taxes! There are lots of rich people around, squandering money. On my show, David Callahan of the group Demos put it this way: “Wealthy Americans who have done so well in the past decade should help get us out.”

            But it’s a fantasy to imagine that raising taxes on the rich will solve our deficit problem. If the IRS grabbed 100 percent of income over $1 million, the take would be just $616 billion. That’s only a third of
            this year’s deficit. Our national debt would continue to explode.

            It’s the spending, stupid.”


            Oh and by the way, if you are all gang busters about giving everything to the poor why don’t you already. Why don’t you look at Obama and Soros, and Jarrett, and Holder, and Peloser, and Harry Reid. The stinkin rich assholes in your camp. Why don’t they share? How much money did the Democrats raise just to destroy the Conservatives in this election. Face it dude, you are dealing with a bunch of hypocrites too……

          • charleo1

            You’re quoting John Stossel to me? Really? The IRS
            is not contemplating, “grabbing 100% of the rich’s
            money,” now are they? What we need to do is either
            one of two things. Support wages, or raise taxes.
            Corporations, Hedge Funds, and Capital Gains are
            where the tax cuts were supposed to incentivize
            investment in business, and job expansion. What the blanket cuts have done, is subsidize off shore
            investments. Which have actually exacerbated the
            problem. Fewer jobs here, means fewer tax payers,
            lower demand, higher unemployment, and higher
            public debt. It has also meant record profits for the
            corporations, and the top .005%, with loopholes in
            the tax law, big enough to drive a prosperous economy thru. So naturally, they want things to remain the same. And, they also very much like mouthpieces like John Stossel, who couch the issue
            they don’t want to talk about, in stupid nonsensical,
            terms. Instead of having a responsible conversation
            about reforming our dysfunctional tax system. And
            make that a part of reforming entitlements. Which
            is another thing, both are loathe to talk about. Mainly because neither of these entities are going to get everything they want. Certainly not the corporate types. Who characterize any change as a wholesale Communist takeover. And not the Liberal Left, who characterize all reform, as throwing the poor out on the ice. But, there is no question on which side it is the fattest. That our economy is out of balance. Too much of the gains are going to the top, and too few are reaching the core economy. And that’s not just a poor, or Middle Class problem, by the way. The elephant in the room, is the long term profits, and growth outlook, produced by this business model, of low wages, tax avoidance, and government subsidization of wages. It is absolutely hammering Western economies, here and in Europe. And, Contributing to political unrest, in places that have been in the headlines, like Tunisia, and Egypt, and Iran. Which were depicted as democracy/freedom movements. But were actually set in motion by the rising costs of food, as a result of the Worldwide recession, that began in the vast financial markets of America, and Europe. And, when Stossel, a bright guy, starts talking about the core problems, of which I’m sure he personally is aware, I’ll start listening to him.

        • joe schmo

          Oh by that you mean…..Soros, Steyer, Obama, Hold-up, Peloser and, of course, one more might not hurt…..Harry Reidtard.

    • Joe T


  • charleo1

    “The way to stop discrimination of the basis of race, is to stop discriminating on the basis of race.” Chief Justice John Roberts. The problem with that is, that it assumes the only kind of discrimination that still exists, is reverse discrimination. Something we would expect to hear at a local klan meeting, in the deep South. And not from a sitting Chief Justice of the Supreme Court. The conclusion Roberts makes, in the face of overwhelming evidence to the contrary, is staggering. By almost any comparison one chooses to make, whether it’s income, the criminal justice system, or the disparity in the quality of educations between well off, White suburbanites, and inner city Blacks, or Latinos. Discrimination remains institutionalized, and firmly entrenched in the hearts, and minds, of far too many members of the White power structure, to be minimized, and/or, discounted by such a statement. Ironically the statement itself, coming from one of the highest seats of power in the Nation, disproves the very premise it proclaims to support. That an inch towards equality, is as good as a mile. And good enough, if the admission to some mea culpa in the distant pass. Some wrong inflected a hundred years ago. Is now judged to have been righted, and the ledger balanced, for the 400 years of slavery, and another 100 years of Jim Crow, for good measure, in the span of the last 40 years!

    • jwtm

      The way to stop discrimination of the basis of race…”
      Misattribution. Actually Sotomayor.

      • charleo1

        Actually, correct attribution. See Robert’s opinion:
        Parents Involved in Community Schools v. Seattle School District No. 1.

  • midway54

    Dean and Professor Chemerinsky is a brilliant constitutional scholar whom I have long admired. This book is well-written, lucid and articulate in the way that all his publications have been. It is a book that for me I could hardly put down and could hardly wait to get back to. His observations discussed in the history of the Court and particularly the manner in which some major cases were decided keeps the reader’s attention. His suggestions for improving the way in which nominees are selected by the President and thereafter questioned by the Judiciary Committee in its hearings are excellent. He seeks to improve the professional competence of the justices so as to avoid what he explains have been flawed decisions in important cases across the years and simultaneously to increase the public’s confidence in the quality of the justices and in the integrity of the Court and its work.

  • “Because of the long history of disparities in education, standardized
    tests often have a discriminatory impact on racial minorities.”

    How can a “long history of disparities in education” affect the ability a given person of today to do well on a standardised test? Your grandfather’s and father’s lousy educations aren’t inherited traits.

    Quit trying to make excuses.

    • joe schmo

      Right you are. Stupid is as stupid does. It is essentially up to the individual to take the bull by the horn and make a go at life. In other words, standardised tests are slated for everyone. Not all racial minorities do poorly. Again, I state that it is up to the individual to make or break it in life. Look at Dr. Ben Carson…just reading his book called ‘One Nation.’ Excellent read. His mother was illiterate yet pushed her children to read. She did not allow them to watch television. One smart mom if you ask me. Dr. Carson also stated he did poorly in school because he wanted to. It wasn’t until he had a mentor spur him on that his life turned around. So there you have it.

  • Joe T

    THE REAL ANSWER….term limits (two) for all appointed/voted seats to wit:
    Supreme Court, Federal Courts. Appellate courts, Presidency. Congress, etc.
    I don’t care WHO they are …if they don’t go in with a BIAS they develop one due to various pressures, promises, etc……….two terms! new blood in!

  • jwtm

    Term limits mean we would lose Ruth Bader Ginsburg. No way!

  • Tessa Yaeger

    Cultural Bolsheviks within the U.S. Air Force eliminated support for Operation Christmas Child because it’s run by a Christian charity.