The Case Against the Supreme Court

The Case Against the Supreme Court

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by Erwin Chemerinsky
     
 

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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

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Overview

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.

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Editorial Reviews

Publishers Weekly
08/11/2014
Chemerinsky, a constitutional scholar from the University of California, Irvine, offers an accessible, refreshingly candid, and no-holds-barred indictment of the Supreme Court. Chemerinsky crafts his argument based on past Court decisions that are universally deemed to be on the wrong side of history, and on a stinging analysis of the more recent judgments of the Rehnquist and Roberts Courts. His thesis is built on the analysis of an array of Court opinions that address fundamental issues in American society. Chemerinsky’s own opinions are direct and unambiguous. Among a long list of issues, he finds the Court wanting in its approach to the problems of racial equality and protecting the rights of citizens in times of crisis, and condemns the Roberts Court’s rulings on voting rights, campaign finance, and the rights of citizens to sue for redress for governmental misconduct. Chemerinsky’s evaluation of the famously liberal Warren Supreme Court is particularly interesting for his claim that “it could have and should have done so much more.” He is sensitive to the charge that his (correctly) perceived liberal bias will undercut his thesis and responds that many of the criticized opinions are wrong from any perspective, liberal or conservative. An insightful analysis that advances much to consider, especially in light of recent controversial opinions. (Oct.)
Kirkus Reviews
2014-06-30
The dean of the School of Law at the University of California, Irvine, places our most revered governmental institution on trial and finds it deeply flawed.If, as Chemerinsky (The Conservative Assault on the Constitution, 2010, etc.) posits, the Supreme Court's two most important responsibilities are to protect the rights of minorities and to uphold the Constitution against the impulse of political majorities, it has too often failed. By these terms, he makes a convincing argument. He draws on a number of crucial (and, he insists, wrongly decided) cases from all eras and across many different areas of the law to demonstrate the court's dereliction. When it comes to race, the court has historically done more harm than good. In times of crisis—during war, in the wake of 9/11, etc.—the court has failed to restrain majorities, has allowed free speech to be trampled, and has permitted the wrongful detention, incarceration and internment of citizens. Instead of protecting employees and consumers or ensuring a path to recovery for the injured, the court has favored protecting property, freedom of contract and states' rights. Nor does the performance of the Warren-led court, far more in keeping with Chemerinsky's forthrightly acknowledged liberal politics, absolve the court of its many lapses. He reminds us that Warren's tenure was brief and argues that even in the areas of its greatest successes—voting rights, school desegregation, ensuring counsel for criminal defendants—the court did much less than was necessary. Needless to say, the Roberts-led court comes in for a shellacking. Taking hope from the stirring dissents contained in most of the especially important cases he cites, Chemerinsky rejects recent scholarly calls for the abolition of judicial review and offers instead a number of reforms designed to improve the court and return it to its proper mission.Though he strives mightily to be fair, Chemerinsky's analysis remains vulnerable to the charge he most fears: an inevitably biased critique, amounting merely to the complaint that "the Court's decisions have not been liberal enough."
From the Publisher
Praise for Erwin Chemerinsky

“A catalyst for fundamentally changing the nation’s most important and . . . least democratic institution . . . A scholar with intellectual power, passion and pluck.”―Los Angeles Review of Books

"One of the shining lights of legal academia."―The New York Times

Praise for THE CONSERVATIVE ASSAULT ON THE CONSTITUTION

"Our Constitution depends on the courts to keep it alive; we all depend on Erwin Chemerinsky to remind us why that is so important. This book is essential reading for anyone who cares about preserving our constitutional birthright."—Susan N. Herman, Preseident, Amerian Civil Liberties Union

"Erwin Chemerinsky knows the Constitution as a legal scholar and the Supreme Court as a lawyer who represents clients there. It's a rare and poweful combination that makes him uniquely qualified to write this disturbing and persuasive book about the impact of the current Supreme Court's approach to constitutional interpretation."—Linda Greenhouse, lecturer, Yale Law School; former New York Times Supreme Court correspondent

 

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Product Details

ISBN-13:
9780670026425
Publisher:
Penguin Publishing Group
Publication date:
09/25/2014
Pages:
400
Sales rank:
126,304
Product dimensions:
6.00(w) x 9.10(h) x 1.40(d)
Age Range:
18 Years

Read an Excerpt

The Conservative Assault on the Constitution

Enhancing Government

Federal Jurisdiction

Constitutional Law: Principles and Policies

Criminal Procedure (with Laurie Levenson)

Constitutional Law

Interpreting the Constitution

Published by the Penguin Group

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First published by Viking Penguin, a member of Penguin Group (USA) LLC, 2014

Copyright © 2014 by Erwin Chemerinsky

Penguin supports copyright. Copyright fuels creativity, encourages diverse voices, promotes free speech, and creates a vibrant culture. Thank you for buying an authorized edition of this book and for complying with copyright laws by not reproducing, scanning, or distributing any part of it in any form without permission. You are supporting writers and allowing Penguin to continue to publish books for every reader.

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Chemerinsky, Erwin, author.

The case against the Supreme Court / Erwin Chemerinsky.

p. cm.

Includes bibliographical references and index.

eBook ISBN 978-0-698-17631-7

1. United States. Supreme Court. 2. Judicial review—United States. I. Title.

KF8742.C46 2014

347 73 26—dc23 2014004507

Also by Erwin Chemerinsky

Title Page

Copyright

Dedication

Introduction: Assessing the Supreme Court

PART I. THE PAST: THE SUPREME COURT IN HISTORY

Chapter 1 Protecting Minorities

Chapter 2 Enforcing the Constitution in Times of Crisis

Chapter 3 Protecting Property and States’ Rights

Chapter 4 What About the Warren Court?

PART II. THE PRESENT: THE ROBERTS COURT

Chapter 5 Employers, Employees, and Consumers

Chapter 6 Abuses of Government Power

Chapter 7 Is the Roberts Court Really So Bad?

PART III. THE FUTURE: WHAT TO DO ABOUT THE SUPREME COURT?

Chapter 8 The Question of Judicial Review

Chapter 9 Changing the Court

Conclusion: How Should We Think and Talk About the Supreme Court?

Acknowledgments

Notes

Index

Introduction: Assessing the Supreme Court

Carrie Buck was born in 1906 in Charlottesville, Virginia. She was the first of three children born to Emma Buck. Frederick Buck was Carrie’s father, but he left Emma soon after their wedding. Unable to afford to care for Carrie, Emma placed her with foster parents, J. T. and Alice Dobbs. Carrie went through the sixth grade at the local public school and by all accounts was a normal child. At age seventeen, while Carrie was still living with her foster parents and helping out with chores around their house, she was raped by a nephew of her foster parents and became pregnant.

The Dobbs blamed Carrie for the pregnancy and were shamed by it. On January 23, 1924, they involuntarily committed Carrie to the Virginia State Colony for Epileptics and Feeble-Minded. A few months later, on March 28, Carrie gave birth there to a daughter, Vivian. The State of Virginia immediately took Vivian away from Carrie and put her in the care of Carrie’s foster parents, who ultimately adopted Vivian. As if this story were not tragic enough, the state then sought to have Carrie surgically sterilized by tubal ligation.

Virginia had a new eugenics law that authorized the involuntary surgical sterilization of those deemed to be of low intelligence. Virginia was not alone. By the 1930s, more than thirty states had laws that allowed for the involuntary sterilization of criminals, those of low intelligence, and those with so-called hereditary defects, including alcoholism and drug addiction in some states and even blindness and deafness in others.

A hearing was held before Carrie Buck’s sterilization. Harry Laughlin, the drafter of many of these eugenics laws, provided a deposition in Carrie’s case. He began his “family history” of the Bucks by writing, “These people belong to the shiftless, ignorant and worthless class of anti-social whites of the South.” Laughlin stated that Carrie and Emma were “feeble-minded,” as determined by the Stanford-Binet intelligence test, which had recently been created. Carrie, he said, scored a mental age of nine years; Emma, her mother, seven years and eleven months.

Laughlin said that most feeblemindedness is inherited, and Carrie Buck fit this pattern. “Generally feeble-mindedness is caused by the inheritance of degenerate qualities; but sometimes it might be caused by environmental factors which are not hereditary,” he said. “In the case given, the evidence points strongly toward the feeble-mindedness and moral delinquency of Carrie Buck being due, primarily, to inheritance and not to environment.”

A social worker, Caroline Wilhelm, testified that Carrie’s daughter, Vivian, was mentally retarded. At the time of the hearing, Vivian was seven months old. Wilhelm said that “there is a look about it that is not quite normal, but just what it is, I can’t tell.” She said that the baby seemed “apathetic.” She then urged Carrie Buck’s sterilization: “I think,” she said, “it would at least prevent the propagation of her kind.”

We now know that neither Carrie nor Vivian Buck was mentally retarded. Many years later, professor Paul Lombardo found Carrie Buck and wrote: “As for Carrie, when I met her she was reading newspapers daily and joining a more literate friend to assist at regular bouts with the crossword puzzles. She was not a sophisticated woman, and lacked social graces, but mental health professionals who examined her in later life confirmed my impressions that she was neither mentally ill nor retarded.”

Vivian Buck died at the age of eight, from enteric colitis. Harvard professor Stephen Jay Gould tracked down her records and found that at the Venable Public Elementary School of Charlottesville, which she attended for four terms—from September 1930 to May 1932, a month before her death—she received passing grades in every subject.

Carrie Buck’s sister, Doris, also was surgically sterilized without her consent. Doris was told that she was having an appendectomy, but instead a tubal ligation was performed on her. It was not until 1980 that Doris learned what had been done to her. She, too, was of normal intelligence.

The United States, of course, was not alone in performing surgical sterilizations—vasectomies for men and tubal ligations for women—on those who were deemed “unfit.” Before World War II, Nazi Germany subjected 375,000 people to forced sterilization—most for “congenital feebleness,” but at least four thousand for being deaf or blind.

But isn’t the United States different, because we have a Constitution that protects individual liberties and we have a Supreme Court to enforce it? Carrie Buck’s case made it all the way to the Supreme Court in a lawsuit with the doctor who performed the operation, John Bell. A guardian for Buck, R. G. Shelton, filed the case on her behalf and challenged the constitutionality of the Virginia law that authorized involuntary sterilizations. Buck’s attorney, Irving Whitehead, argued that her fundamental rights had been violated by surgically sterilizing her without her consent and that forced sterilization was “cruel and unusual punishment.” After all, Carrie Buck had committed no crime and had done nothing wrong. She was involuntarily institutionalized by her foster parents after she was raped. Buck’s case was the vehicle for challenging state eugenics laws that were being used to surgically sterilize the “unfit” all across the country.

But the Supreme Court, in Buck v. Bell, in 1927, ruled against her by an 8–1 margin. None other than the eminent Justice Oliver Wendell Holmes Jr. regarded as one of the greatest jurists in American history, wrote the opinion for the Court against her. Before being appointed to the Supreme Court in 1902, Holmes had fought in the Civil War, been a professor at Harvard Law School, and served as a justice and chief justice of the Massachusetts Supreme Judicial Court. He served for thirty years on the United States Supreme Court before retiring at age ninety. His opinions in many areas, such as those arguing in favor of protection of freedom of speech, are among the most revered in American history.

In Buck v. Bell, Holmes began his opinion by stating that “Carrie Buck is a feeble-minded white woman who was committed to the State Colony. . . . She is the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child.” Justice Holmes, writing for the almost unanimous Court, then upheld the Virginia law and the constitutionality of the sterilization of Carrie Buck. The Court said that sterilizing her could not be deemed cruel and unusual “punishment” because she had not been convicted of any crime. The Court then went further, not only upholding the Virginia law that Buck was challenging, but defending the desirability of eugenics laws. Justice Holmes said that such eugenics laws are desirable because they keep the country from being “swamped with incompetence.” In some of the most offensive and insensitive language to be found in the United States Reports, Holmes declared, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”

Thousands more were surgically sterilized as a result of this decision. In the United States, by 1935, more than twenty thousand forced sterilizations had occurred, nearly half in California. In fact, at the Lynchburg Hospital, where Buck was sterilized, four thousand individuals were involuntarily surgically sterilized, some as late as 1972. Altogether, according to attorney John G. Browning, “over 60,000 Americans nationwide were subjected to salpingectomies [the removal of one or both of a woman’s fallopian tubes], vasectomies, or castrations.”

How can this be? How could the Supreme Court have failed so miserably? It is not that her case was poorly briefed or argued. It is not that the justices could not perceive the inhumanity and injustice in surgically sterilizing a young woman without her consent. In fact, most lower courts to consider the issue prior to Buck v. Bell had declared involuntary sterilization unconstitutional. It is simply that the Court sided with the government and failed to protect an individual from a horrific abuse of power.

Evaluating the Supreme Court

Throughout this book, I tell stories of instances in which the Supreme Court sanctioned terrible injustices. The examples are drawn from throughout American history and from every area of constitutional law.

For more than thirty years I have taught these cases and been outraged by them. I have wanted to believe that they are the exceptions to the Supreme Court’s overall successful enforcement of the Constitution. But as the years went by, as the cases that seem misguided—even tragically so—filled my casebook and my syllabus, I came to realize that it is time for me to reexamine the Supreme Court. It is important to ask directly the question, Has the Supreme Court been a success or a failure?

My conclusion is the thesis of this book: The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments. This is not easy for me to conclude or to say. Almost forty years ago, I decided to go to law school because I believed that law was the most powerful tool for social change and that the Supreme Court was the primary institution in society that existed to stop discrimination and to protect people’s rights. In a society filled with inequalities and injustices, the civil rights lawyers of the 1950s and ’60s were the model for what I wanted to be.

I have been teaching, writing, and litigating about constitutional law for more than thirty years now. I have argued cases before the Supreme Court. I am the author of the leading law school textbook about constitutional law. Through it all, I have uncritically assumed that despite obvious missteps the Supreme Court has done far more good than harm. But now, as I try to assess the performance of the Court, all of my years of studying, teaching, and practicing constitutional law have convinced me that the Supreme Court is not the institution that I once revered. It has rarely lived up to these lofty expectations and far more often has upheld discrimination and even egregious violations of basic liberties.

My disappointment in the Court is both historical and contemporary. One need only look at the Court’s decisions from the past few years—preventing employment discrimination suits and class actions against the largest corporations, keeping those injured by misconduct of generic drugmakers from having any recovery, denying remedies to those unjustly convicted and detained—to see what has historically been true: the Supreme Court usually sides with big business and government power and fails to protect people’s rights. Now, and throughout American history, the Court has been far more likely to rule in favor of corporations than workers or consumers; it has been far more likely to uphold government abuses of power than to stop them.

I realize, of course, that there needs to be a rubric for assessing whether the Court is succeeding or failing. One measure is the decisions of the Court, like Buck v. Bell, that are uniformly condemned by subsequent generations of scholars and judges. Can anyone seriously contend that the Court was not mistaken, terribly so, in its ruling against Carrie Buck? To make the case against the Supreme Court, I will focus especially on examples like this, where virtually everyone today—liberal and conservative alike—can agree that the Court was wrong.

Why Have a Constitution?

Before we can judge the Court, we have to know why it exists. This in turn requires thinking about what the Constitution is meant to accomplish. I begin every constitutional law class, whether for law students or undergraduates, by asking them a basic question: Why have a Constitution? Why, in 1787, was it desired, and why have it today?

It is easy to describe what the Constitution does. The Constitution both empowers and limits government; it creates a framework for American government, but it also limits the exercise of governing authority by protecting individual rights. It creates the institutions of American government—Congress, the president, the Supreme Court and federal judiciary—defines how they are chosen, delineates key aspects of how they operate, and grants powers to each. It also specifies, especially in the Bill of Rights, the liberties that people possess upon which the government cannot infringe.

But that does not address the question I pose to my students: Why accomplish these things through a constitution? Great Britain, for example, has no written constitution. In the Netherlands, no court has the power to declare any law unconstitutional; in fact, its judiciary is prohibited from doing so. The governments in these countries are not totalitarian.

If no constitution existed in the United States, there likely would have been some initial informal agreement creating the institutions of government, and those institutions would have determined both the procedures of government and its substantive enactments. For example, the framers at the Constitutional Convention, in Philadelphia in 1787, could have served as the initial legislature and, in that capacity, devised a structure of government embodied in a statute that could have been altered by subsequent legislatures.

The key difference between this approach and the Constitution is that the latter is far more difficult to change. Whereas legislative enactments can be modified by another statute, the Constitution can be amended only by a much more elaborate and difficult procedure. Article V of the Constitution prescribes two ways of amending the Constitution. One is for both houses of Congress, by a two-thirds vote, to propose an amendment that becomes effective when ratified by three-fourths of the states. All twenty-seven amendments to the Constitution have been adopted through this procedure. The other mechanism outlined in Article V, though never used, is for two-thirds of the states to call for Congress to convene a constitutional convention that would propose amendments for the states to consider. These amendments, too, would require approval of three-fourths of the states in order to be ratified.

Therefore, a defining characteristic—indeed, the defining characteristic—of the American Constitution is that it is very difficult to alter. It has been amended only seventeen times in the more than 220 years since the first ten amendments were ratified in 1791 in the form of the Bill of Rights. (And two of those seventeen amendments enacted and then repealed Prohibition.) Thus, in focusing on the question “Why have a Constitution?” the real issue is: Why should a society generally committed to majority rule choose to be governed by a document that is very difficult to change? Harvard law professor Laurence Tribe puts the question succinctly: “[W]hy would a nation that rests legality on the consent of the governed choose to constitute its political life in terms of commitments to an original agreement—made by the people, binding on their children, and deliberately structured so as to be difficult to change?”

It is hardly original or profound to answer this question by observing that the framers chose to create their government in a constitution deliberately made difficult to change as a way of preventing tyranny of the majority, of protecting the rights of the minority from oppression by social majorities. They did not place the structure of government in a statute that could be easily changed; history shows that there is often an overwhelming tendency to create dictatorial powers in times of crisis. If protections of individual liberties were placed only in statutes, a tyrannical government could overrule them. If terms of office were specified in a statute rather than in the Constitution, those in power could alter the rules to remain in office.

Thus, a constitution represents an attempt by society to limit itself in order to protect the values it most cherishes. A powerful analogy can be drawn to the famous mythological story of Ulysses and the Sirens, from Homer’s Odyssey. Ulysses, fearing the Sirens’ song, which seduced sailors to their death, had himself bound to the ship’s mast to protect himself from temptation. Ulysses’s sailors plugged their ears with wax so they would be immune to the Sirens’ call, whereas Ulysses, tied to the mast, heard the Sirens’ song but was not harmed by it. Despite Ulysses’s pleas for release, his sailors followed his earlier instructions and kept him bound and safe from the Sirens’ song. His life was saved because he recognized his weakness and protected himself from it.

A constitution is society’s attempt to tie its own hands, to limit its ability to fall prey to weaknesses that might harm or undermine cherished values. History teaches that the passions of the moment can cause people to sacrifice even the most basic principles of liberty and justice. The Constitution is society’s attempt to protect itself from itself. The Constitution enumerates basic values—regular elections, separation of powers, individual rights, equality—and makes change or departure very difficult.

Although the analogy between the Constitution and Ulysses is appealing, there is a problem: Ulysses tied only his own hands; a constitution binds future generations. No one alive today had the chance to participate in deciding whether to be governed by the American Constitution, and few of us even had ancestors who were part of approving the document. The survival of the Constitution likely is a reflection of the widespread belief, throughout American history, that it is desirable to be governed under it. Indeed, one enormous benefit of the Constitution is that it is written in terms sufficiently general and abstract that almost everyone in society can agree to them. For example, people disagree about which speech should be protected and under which circumstances—there is great disagreement over whether the First Amendment should protect pornography or hate speech—but there is almost universal agreement that there should be protection for freedom of speech. The Constitution thus serves as a unifying device, increasing the legitimacy of government and government actions. Stanford professor Thomas Grey observed that the Constitution “has been, virtually from the moment of its ratification, a sacred symbol, the potent emblem . . . of the nation itself.”

Why the Supreme Court?

The primary reason for having a Supreme Court, then, is to enforce the Constitution against the will of the majority. In a democracy, the majority can protect itself through the political process; it is minorities—political, racial, social, economic—that need protection that democracy often cannot and will not provide.

Therefore, I believe that the two preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities. This is why the justices of the Supreme Court, and of the lower federal courts, are granted life tenure and can be removed from office only by the very difficult method of impeachment by the House of Representatives and conviction by two-thirds of the Senate. Judges with these protections, it always has been hoped, will be more likely to safeguard minorities and enforce the Constitution against repressive desires than government officials who are elected and are accountable to the voters.

These purposes, then, provide the criteria for all of us to use to evaluate the Court: How has it done in protecting the rights of minorities of all types? How has it done in upholding the Constitution in the face of the repressive desires of political majorities?

My thesis, developed in the chapters of this book, is that the Court has largely failed at both of these tasks. Throughout American history, the Court usually has been on the side of the powerful—government and business—at the expense of individuals whom the Constitution is designed to protect. In times of crisis, when the passions of the moment have led to laws that compromise basic rights, the Court has failed to enforce the Constitution.

This reality is often overlooked because we all share the perception that the Court is “objective” and decides questions based on the law, separate from the ideologies of the justices. There is thus a sense that it is the “law,” not the justices, that is responsible for the Court’s decisions. This is nonsense and always has been. The Court is made up of men, and now finally women, who inevitably base their decisions on their own values, views, and prejudices.

The Court’s choice in 1857 to hold that slaves are property and not citizens, which paved the way for the Civil War, reflected the fact that a majority of the justices had been slave owners. The Court’s choice in 2011 to deny any recovery to a man who spent eighteen years on death row for a crime that he did not commit reflects a Court composed of conservatives who favor government power over individual freedom. The broad, open-ended language in the Constitution means that decisions in important cases are products of who is on the Court and their personal views. What is “cruel and unusual punishment,” and whether a life sentence for shoplifting violates this, depends entirely on the ideology of the justices on the bench at the time the case comes before them. What is “equal protection,” and whether that is violated by a system that executes more African Americans than whites for the same crimes, likewise is a function of the values of the nine justices. Whether pornography and hate speech are entitled to protection under the First Amendment depends on who is on the Court, and their values.

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and enforcing the limits of the Constitution. My claim is that the Court often has failed where and when it has been most needed. That is the case against the Supreme Court that this book presents.

There have been thousands and thousands of Supreme Court decisions, and I, of course, can discuss only a fraction of these. I realize that it is possible to respond to my criticisms by arguing that I have focused on the atypical mistakes. All branches of government, all institutions, err; a case could be made against any of them by pointing to their worst mistakes. But I believe that the case against the Supreme Court is more than that. I focus on the Court’s most important responsibilities and argue that the justices have failed especially at the times when they were needed most. I believe that by looking at the Court over the sweep of its history and by considering many different areas of law, a convincing case can be made for the Court’s failure that answers the charge that I am cherry-picking the unrepresentative mistakes.

I am sensitive, too, to the criticism that this is no more than a liberal’s critique of a Court that through American history has been largely conservative. To answer this, I focus especially on Supreme Court decisions that both liberals and conservatives today would consider grave mistakes. My goal is to show why both liberals and conservatives should see the Court as failing relative to its core missions under the Constitution. I recognize, of course, that there is no way to exclude ideology when evaluating the Court, any more than there is a way for the justices to decide cases divorced from their own ideologies. My goal, though, is to show why those of all political views should be deeply troubled by the Supreme Court’s performance throughout American history.

So What Should We Do About It?

What should we do about the Court, and how should we think about it in light of its historic and contemporary failure? Do we really need, or even want, a Supreme Court and lower courts with the power to strike down laws and executive actions?

If looked at over the entire course of American history, given that the case against the Supreme Court is such a strong one, should judicial review—the power of the federal courts and the Supreme Court to invalidate executive and legislative acts—be kept? And if it is to be kept, what changes can be made to better ensure that it will fulfill the purposes intended by the framers of the Constitution? It is these questions, too, that this book seeks to answer.

The book is divided into three parts, looking roughly at the past, the present, and the future. Part I considers the Court’s performance over the course of American history. First, I look at the Court’s overall record with regard to protecting racial minorities. Second, I focus on the Court’s performance in upholding the Constitution in times of crisis. Third, I discuss the Court’s decisions that have protected business and states’ rights. In each chapter, I seek to answer this question: Has the Court, overall, made society better off than it would have been without it? In addressing these questions, I look at both the Court’s historical and contemporary performance in these areas.

The fourth chapter then addresses a question that is raised by my students and that I’ve always pointed to in defending the Court: What about the Warren Court? Wasn’t it a great success in enforcing the Constitution? After all, it ordered an end to segregation, expanded the rights of criminal defendants, enforced a separation of church and state, and ordered the reapportionment of state legislatures. I applaud the Warren Court and in many ways see it as a model for what the Court can be. But even here, if I force myself to be honest, as I explain in chapter 4, it was much less of a success than I have always assumed.

Part II of the book examines the Court today, the John Roberts Court. Roberts became chief justice in 2005, and there is now an ample record by which we can assess the Court under his leadership. Chapter 5 examines the failure of the Roberts Court to protect people—employees, consumers, and all of us—from abuses by business. It thus has continued the disturbing pattern that has been present throughout American history. Chapter 6 focuses on the Roberts Court’s failure to protect people from abuses of government power. Chapter 7 addresses the question that was in the back of my mind as I was writing this book: Is the current Court really so bad? In answering this question, I focus especially on its decisions regarding the political process: Bush v. Gore (decided by the Rehnquist Court in 2000); Citizens United v. Federal Election Commission, which in 2010 gave corporations the right to spend unlimited amounts of money in elections; and Shelby County, Alabama v. Holder, in 2013, which struck down crucial provisions of the Voting Rights Act of 1965. As I argue, these decisions have caused great harm to the political process in the United States and made the country much worse off than it would have been without the Supreme Court.

Part III considers whether, in light of this record, the Supreme Court—and, more specifically, the power of judicial review—should be kept, and if so, what might be changed so that the Court is more likely to succeed in its role of upholding the Constitution. Chapter 8 asks whether it is worth keeping the Court and judicial review. Some prominent scholars have called for the elimination of the power of judicial review, and, after recounting the Supreme Court’s failures, it is a tempting solution. But I conclude that the Court’s failures were not inevitable, and that despite its failings the Court is essential as a check on the democratic process. My conclusion is that we should look for ways to change the Court and its processes to make it better.

In chapter 9, I consider why the Court has so often failed and how the Court might be reformed to make success more likely. I propose a host of reforms—some simple to implement, others more difficult—that together could make a difference and improve the chances that the Court in the future will succeed at its core missions of protecting minorities and enforcing the Constitution.

I conclude with a short chapter about how we should think and talk about the Supreme Court. We should realize that this is an emperor that truly has no clothes. For too long, we have treated the Court as if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society. We have pretended that the Court is a neutral body, discovering the law and then mechanically applying it. But none of these perceptions are correct. The Court consists of nine human beings who decide hard questions about the meaning of the Constitution. Their decisions are the product of their life experiences, their views, and their values. Antonin Scalia and Ruth Bader Ginsburg so often disagree—in about half of the cases decided each year—not because one of them is smarter or knows the Constitution better. They diverge because of their ideologies. Now, and throughout American history, the Supreme Court’s decisions have been the product of the justices and their values and views. Only after we’ve recognized this reality will we be able to discuss and appraise the Court in a useful way.

The book is thus an attempt to carefully examine one of the major institutions of American government, one that affects each of us, often in the most important and intimate aspects of our lives. I am sure that all will agree that some of the mistakes I identify are serious errors by the Court; others are more controversial; and in some cases, readers might not share my conclusions. But I seek to challenge all of us to think more critically about the Court and to confront the reality that, by any measure, it has too often failed at its most important responsibilities under the Constitution.

The Fate of Carrie Buck

Soon after her sterilization, Carrie Buck was released from the Lynchburg Hospital. She married Charles Detamore, and they remained together until her death. She and her sister, Doris, both expressed great regrets that they were not able to have additional children. Carrie Buck died in 1983, at age seventy-six.

Of the thousands who were surgically sterilized by the government without their consent, Carrie Buck’s story can most easily be told, because her case made it all the way to the Supreme Court and has been researched and documented. It was Carrie Buck whom Oliver Wendell Holmes wrote about in such cruel and degrading language.

In 1942, fifteen years after Buck v. Bell, the Court declared in Skinner v. Oklahoma that the right to procreate is a fundamental right protected under the liberty of the Due Process Clause. Skinner, like Buck v. Bell, involved a state law adopted as part of the eugenics movement. The Oklahoma Habitual Criminal Sterilization Act allowed courts to order the sterilization of those convicted two or more times for crimes involving “moral turpitude.”

The Court, in an opinion by Justice William O. Douglas, declared the Oklahoma law unconstitutional and spoke broadly of the right to procreate as a fundamental right:

We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to whither and disappear. There is no redemption for the individual whom the law touches. . . . He is forever deprived of a basic liberty.

Perhaps Skinner reflects the waning of the eugenics movement that had inspired the laws challenged in both cases. Surely, fighting in World War II against the Nazis, with their attempt to create a master race, also helped make these laws unpalatable. What is clear is that in Skinner, the Court said what it should have declared in Buck v. Bell. Astoundingly, though, Skinner did not overrule Buck v. Bell or try to distinguish it. In fact, to this day, Buck v. Bell never has been expressly overruled by the Supreme Court. Twenty-two states still have laws on the books that allow the government to impose surgical sterilization on those deemed mentally retarded.

Buck v. Bell is not the only or the last case in which the Court failed when a person was surgically sterilized without consent. In July 1971, Ora Spitler McFarlin went to see a judge in his chambers in DeKalb County, Indiana. She said that she was concerned about her fifteen-year-old daughter, Linda. The mother said that the girl was “somewhat retarded” (although Linda attended public school and was promoted each year with her class), and Ora was concerned that Linda was staying out overnight with older men. The mother asked the judge to issue an order to have the girl surgically sterilized. Ora said that sterilizing Linda would “prevent unfortunate circumstances.”

Although the judge lacked authority under Indiana law to issue such an order, he did so. Linda was told that her appendix was being taken out, when actually she was being surgically sterilized. She learned the true nature of the operation later, when she was married and unable to conceive a child. She then sued, among others, the judge who had approved the operation.

A compelling case can be made that the judge was acting totally without jurisdiction. There was no authority under Indiana law for the judge to hear such a case or issue such an order. No case was filed with the court; there were no pleadings, and no docket number was assigned. Neither the girl nor any representative for her was present or allowed to respond. No semblance of due process was provided to Linda before her ability to have children was permanently ended. But the Supreme Court, in a 5–4 decision in Stump v. Sparkman, in 1978, ruled against Linda and said that a judge could not be sued under such circumstances, even for an order that lacked any legal basis and inflicted a terrible permanent injury. As Justice Potter Stewart said in a dissent joined by two other justices, “what Judge Stump did on July 9, 1971, was in no way an act ‘normally performed by a judge.’ Indeed, there is no reason to believe that such an act has ever been performed by any other Indiana judge, either before or since.”

Carrie Buck and Linda Sparkman lived a half-century apart, but they both suffered a great loss and a violation of a basic constitutional right: the government took away from them the ability ever to have a child. It did so without a good reason. The Supreme Court could have ruled in their favor, and in doing so it would have protected so many others from a similar fate. But the Court failed to do so, ruling against both of them without expressing the slightest bit of compassion for what they suffered.

PART I

THE PAST: THE SUPREME COURT IN HISTORY

CHAPTER 1

Protecting Minorities

The word slavery is not mentioned in the Constitution. Nor is race. Nor is “equal protection” found in the document drafted in Philadelphia in 1787. The latter is not surprising, because the Constitution explicitly protects the institution of slavery and the rights of slave owners. If the failures of the Supreme Court are to be chronicled, the place to begin must be race. And to be fair, that failure begins with the Constitution itself.

Slavery, though not mentioned, was clearly written into the Constitution. Delegates from southern states never would have agreed to a constitution, and southern states never would have ratified one, if it did not protect the rights of slave owners. For example, Article I, Section 2 of the Constitution allocates representation in the House of Representatives based on the number of free persons and “three fifths of all other persons,” a reference to slaves.

Article I, Section 9 of the Constitution declared that, until 1808, Congress could not ban the importation “of such persons as any of the states now existing shall think proper to admit.” That is, Congress could not limit the slave trade or keep states from importing more slaves for at least twenty years after the adoption of the Constitution. Article V of the Constitution, which delineates the process for constitutional amendments, identifies only two provisions in the document that cannot be amended: the restriction on Congress limiting the importing of slaves and the requirement that every state have equal representation in the Senate.

Article IV, Section 2 of the Constitution says that “[n]o person held in service or labor in one state . . . escaping to another shall . . . therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” Known as the Fugitive Slave Clause, this provision decreed that if a slave managed to escape to a non-slave state, he or she was not free and had to be returned to his or her owner. The Constitution was thus explicit in protecting the rights of slave owners and in treating slaves as pieces of property.

I always ask my students whether, if they had been at the Constitutional Convention in Philadelphia in 1787, they would have voted to ratify a constitution that so clearly and expressly protected the institution of slavery. I ask them to imagine that they were from a northern state and that they believed that slavery was abhorrent and incompatible with everything they held dear. It was clear at the time that southern states would not have approved a constitution that lacked these provisions and failed to protect the institution of slavery. Would it have been better to allow the country to be split into two (or maybe more) separate nations rather than accept a document that enslaved so many for so long?

Interestingly, one of the most common answers I receive from my students is that they would have voted for the Constitution and then expected the Supreme Court, over time, to interpret the document to protect the rights of slaves and to gradually eliminate the institution of slavery. Their hope was that the Court, whose members have life tenure and never have to face election, would have had the courage to stand up for basic human decency and worked to eliminate a practice that was inconsistent with the most elemental notions of humanity.

But it didn’t work out that way at all. Quite to the contrary, at every opportunity until the Civil War, the Supreme Court acted to protect the rights of slave owners and denied all rights to those who were enslaved. Consider, for example, a case from 1842, Prigg v. Pennsylvania. Pennsylvania adopted a law that prevented the use of force or violence to remove any person from the state in order to return the individual to slavery. Notice that the Pennsylvania law did not give freedom to slaves who had escaped to the state. Nor did it prevent the removal of slaves from Pennsylvania in order to return them to their owners. All Pennsylvania did was prevent “force or violence” to remove and return slaves. Every state has an interest—indeed, a duty—to preserve order and prevent violence.

The Fugitive Slave Act of 1793, adopted by the second Congress, required that judges return escaped slaves to their owners. The Pennsylvania law did not say otherwise. In Prigg, though, the Supreme Court relied on this act and the Fugitive Slave Clause in Article IV of the Constitution to invalidate the Pennsylvania law. Justice Joseph Story wrote the opinion for the Court. Story was one of the most revered justices in American history and the youngest person ever appointed to the Supreme Court, having taken his seat on that bench at age thirty-two. He was a justice for thirty-four years, from 1811 to 1845, and in 1833 published the highly influential Commentaries on the Constitution of the United States, which are still cited to this day. There is a dormitory named for him at Harvard Law School and even a town in Iowa named Story in his memory.

Surprisingly, Justice Story’s place in history does not appear to have been significantly tarnished by what he wrote in striking down the Pennsylvania law preventing force or violence to remove slaves who had escaped into the state. Writing for the Court, Story said that the “object of this clause was to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape from the state where they were held in servitude.” The Court said that the Fugitive Slave Clause “was so vital . . . that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed.” Thus, the Court concluded that “we have not the slightest hesitation in holding that under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave.” The Court also emphasized that the government could punish those who harbored fugitive slaves.

Prigg v. Pennsylvania is typical of the Supreme Court’s attitude toward slavery for the first seventy years of American history. At no point prior to the Civil War did the Supreme Court significantly limit slavery or even raise serious questions about its constitutionality or legitimacy. The importance of slavery as a social and political issue during this period cannot be overstated. It was, as it had to be, the central dispute of the time and affected the debate of almost all other matters. The Supreme Court certainly could have influenced that debate in a positive way to hasten the elimination of slavery, but it did just the opposite.

The Court’s failure with regard to slavery was most evident in one of the most infamous and universally condemned decisions of all time: Dred Scott v. Sandford, in 1857.

In 1819, a major national controversy surrounded the admission of Missouri as a state. The question was whether Missouri and other areas covered by the Louisiana Purchase would be free states or slave states. In a compromise that was intended to resolve the issue, known as the Missouri Compromise, Congress admitted Missouri as a slave state but prohibited slavery in the territories north of latitude 36º30'. Territories below this line could decide whether to allow slavery and could make that choice when admitted as states.

In Dred Scott v. Sandford, the Supreme Court declared the Missouri Compromise unconstitutional and broadly held that slaves were property, not citizens. Dred Scott was a slave in Missouri, owned by John Emerson. He was taken by Emerson into Illinois, a free state. After Emerson died, his estate was administered by John Sandford, a resident of New York. Scott sued Sandford in federal court and claimed that his residence in Illinois made him a free person. Scott asked the court to hear his case under a constitutional provision and a federal statute that allow a citizen of one state to sue a citizen of another state in federal court. This authority of federal courts to hear cases when there is “diversity of citizenship” continues to this day. An automobile accident between someone from California and someone from New York can be litigated in federal court solely because they are from different states, so long as there is a claim for more than $75,000 (the current “amount in controversy” requirement for such suits to be heard in a federal court).

The United States Supreme Court ruled against Scott in a decision that fills more than two hundred pages in the United States Reports. Chief Justice Roger Taney wrote the opinion for the Court. Taney was the fifth chief justice of the United States and served in that role from 1836 until his death, in 1864. Unlike Joseph Story, whose reputation does not seem sullied by his rulings in favor of slavery, Taney will forever be most remembered for his reviled opinion in Dred Scott.

The Court held that slaves, including Dred Scott, were not U.S. citizens; they were just property. Therefore, they could not sue under the law that allowed a citizen of one state to sue a citizen of another state. The Court explained that when the Constitution was ratified, slaves had been considered “as a subordinate and inferior class of beings, who had been subjugated to the dominant race.” The Court reviewed the laws that existed in 1787 and concluded that a “perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery.” Even a slave born in the United States was not a citizen of this country. Nothing in the Constitution required this conclusion; the Court could have defined “citizens” to include slaves.

If this had been all the Court did, its opinion would deserve universal reprobation for deeming an entire group of human beings to be chattels, merely property of their owners. But the Court went far beyond this. Even though the Court concluded that it lacked jurisdiction to hear Scott’s suit, it went on and declared the Missouri Compromise unconstitutional. This was only the second time in American history that the Supreme Court had declared a federal law unconstitutional. The first was Marbury v. Madison, in 1803, which established the power of the federal judiciary to declare laws unconstitutional and invalidated a minor provision concerning Supreme Court jurisdiction.

In Dred Scott, the Supreme Court ruled that Congress could not grant citizenship to slaves or their descendants; this would be a taking of property from slave owners without due process or just compensation. Congress’s eliminating slavery in territories north of the specified line in the Missouri Compromise was deemed an impermissible taking of property from slave owners. The Court concluded: “[T]he right of property in a slave is distinctly and expressly affirmed in the Constitution. . . . [I]t is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void.” Hence, any federal law that sought to limit slavery was unconstitutional if it had the effect of freeing a single slave, because it was taking property away from its owner.

For Scott, the Court’s decision meant that he was not made free by being taken into Illinois; he was forever and permanently the property of his owner. But on May 26, 1857, the sons of Peter Blow, Scott’s first owner, purchased emancipation for Scott and his family. Their gaining freedom was national news and celebrated in northern cities. Scott went to work in a hotel in St. Louis, where he was considered a local celebrity, but he died of tuberculosis just eighteen months after being granted his freedom.

Although the Supreme Court undoubtedly thought that it was resolving the national controversy over slavery in Dred Scott v. Sandford, the decision had exactly the opposite effect. The ruling became the focal point in the debate over slavery, and, by striking down the Missouri Compromise, the decision helped to precipitate the Civil War.

It is certainly fair to ask whether the fault was with the Supreme Court or really with the Constitution, which protected the institution of slavery. Several years ago, Harvard Law School professor Charles Ogletree had an event at which he asked a group of lawyers, law professors, and judges to debate the question of whether Dred Scott was inevitable. Was slavery so written into the fabric of the Constitution that there would inevitably come a point at which protecting it would lead to a decision like Dred Scott? Is it fair to expect better from a Court on which a majority of the justices had been slave owners and several still owned slaves?

I raise these questions for my students to consider, too. My own sense is that the Court could have and should have done far better. The Court could have held that slaves were U.S. citizens—especially those who were born in this country. No matter what, it did not need to even reach the question of whether the Missouri Compromise was constitutional. Once it held that it lacked jurisdiction to hear the case, the matter should have been dismissed. That is a basic rule of law that is learned by every first-year law student.

The Court took upon itself trying to resolve the issue of slavery for the nation. That, in itself, reflected enormous hubris. The country had been debating slavery, directly and indirectly, for seventy years. It is hard to imagine that the justices really thought that their ruling could put the issue to rest. But if it was going to try to do so, it is inexcusable that it put all of its chips on the side of slave owners and the institution of slavery. England, by act of Parliament, had abolished slavery throughout its empire in 1833. To say that Dred Scott was inevitable is to fail to recognize that justices always have tremendous discretion in their decisions. It is unrealistic to think that the Court could have eliminated slavery all at once, but it could have, in a series of decisions, including Dred Scott, slowly chipped away at the repugnant institution. It could have ruled that Scott was a citizen of the United States. It could have said that he was made free by being taken to Illinois. But it did exactly the opposite.

The Post–Civil War Amendments

The Court’s record on race did not improve after the Civil War. The Constitution was amended to overturn the Dred Scott decision and to eliminate slavery. Three crucial amendments were adopted between 1865 and 1870.

In 1865, the Thirteenth Amendment was passed by Congress and ratified. It prohibits slavery and involuntary servitude and gives Congress the authority to adopt laws to enforce this. The adoption of the Thirteenth Amendment was the focus of Steven Spielberg’s recent movie Lincoln.

President Lincoln knew that the Emancipation Proclamation, declaring the slaves to be free, was not enough and had no real legal effect; the president lacked the authority under the Constitution to prohibit slavery or to free slaves from their owners. The Supreme Court’s decision in Dred Scott was still the law: slaves were property of their owners, and to decree otherwise, under that decision, would be an unconstitutional taking of property. Lincoln thought it essential that the Constitution be amended before the end of the Civil War to eliminate slavery and thus to overrule Dred Scott. The Thirteenth Amendment was passed by the Senate on April 8, 1864, and after having been initially rejected by the House of Representatives, it was passed by that chamber on January 31, 1865. President Lincoln was assassinated less than three months later, on Friday, April 14, 1865. It wasn’t until December 8, seven months after his death, that the Thirteenth Amendment was ratified by the required three-fourths of the states.

After the Civil War, the overwhelming majority of Congress—which was still almost exclusively those from the North—realized that abolishing slavery was not sufficient. There was a need to overturn Dred Scott and make clear that slaves were citizens of the United States. There was a need to make sure that states, especially in the former Confederacy, protected the rights of former slaves and that state governments could not violate the rights of their citizens. The Fourteenth Amendment was proposed to do just this. In its first section, it directly overrules Dred Scott by declaring that all persons born or naturalized in the United States are citizens of this country. Section 1 also says that no state can deprive any person of life, liberty, or property without due process or deprive any citizen of the privileges or immunities of United States citizenship or deny any person “equal protection” of the laws. This was the first mention of equality in the Constitution.

The Fourteenth Amendment was a major limit on what state governments could do to those within their borders. Indeed, of all the amendments since the Bill of Rights, the Fourteenth Amendment is the most important. It bestowed citizenship on the former slaves, prohibited states from denying any person equal protection, ensured that no person could be deprived of life, liberty, or property without due process of law, and empowered Congress to adopt legislation to implement it. It is through the Fourteenth Amendment that the Bill of Rights has been applied to the states.

Yet of all the amendments, the Fourteenth is the most questionable in terms of the procedures followed for its ratification. It raises the issue—one that I put to my students—of whether its legitimacy is questionable because of how it was adopted.

Soon after the Fourteenth Amendment was proposed, the legislatures of Georgia, North Carolina, and South Carolina rejected it. Congress was furious and saw this as an attempt by Southern states to undermine the North’s victory in the Civil War. Therefore, in Section 5 of the Reconstruction Act, Congress specified that no rebel state would be readmitted to the Union and entitled to representation in Congress until it ratified the Fourteenth Amendment. The Reconstruction Act, adopted over President Andrew Johnson’s veto just days before his scheduled impeachment trial, also created military rule over the states of the Confederacy. Johnson was a native of Tennessee, and his sympathies in many ways were with the Southern states, such as in his opposition to the terms and manner of Reconstruction.

New governments were created in these states, and the three states that had rejected it, along with most of the other Southern states, then ratified the Fourteenth Amendment. They had no choice and they knew it. However, Ohio and New Jersey, which had ratified the amendment, subsequently passed resolutions withdrawing their ratification.

Nonetheless, on July 20, 1868, the secretary of state issued a proclamation that the required three-fourths of the states (twenty-eight of the thirty-seven states) had ratified the amendment. His list included the Southern states that had initially rejected the amendment but had later approved it because of coercion from Congress, and Ohio and New Jersey, even though they had rescinded their ratification. The following day, Congress passed a concurrent resolution declaring that the Fourteenth Amendment was a part of the Constitution because it had been ratified by three-fourths of the states. The list of ratifying states included Ohio and New Jersey. Many years later, the Supreme Court recited this history and said that nonetheless the Fourteenth Amendment was properly ratified.

One more constitutional amendment was ratified, not long after the Civil War, to create racial equality. This was the Fifteenth Amendment, in 1870, which provides that the right to vote cannot be denied on account of race or previous condition of servitude. It, too, authorizes Congress to adopt laws to enforce it.

The Thirteenth, Fourteenth, and Fifteenth Amendments were adopted to transform government, especially with regard to race. They were a major shift in power from the state governments to the national government. I am always bemused, if not outraged, by discussions of “states’ rights” under the Constitution that focus on what the framers intended in 1787 and totally disregard how the post–Civil War amendments completely changed the Constitution in this regard.

But the promise of these amendments went largely unrealized for almost a century, until the Warren Court in the mid-1950s, and especially Brown v. Board of Education, in 1954. The failure was clearly the Supreme Court’s; its very cramped view of the post–Civil War amendments began almost immediately after their ratification. To be fair, there is plenty of blame to go around, and racism was deeply embedded in the country, limiting what any court could do. Yet an important part of the story is that the Court did nothing to advance racial equality for almost ninety years after the Civil War and instead used its power and influence to limit the protections of the post–Civil War amendments. There can be a debate over how far the Court could have gone, but there can be no dispute that for nearly a century it did nothing helpful in the area of race.

The first Supreme Court case to interpret the Thirteen and Fourteenth Amendments came soon after they were ratified, in the Slaughter-House Cases of 1873. Seeing a huge surplus of cattle in Texas, the Louisiana legislature gave a monopoly in the slaughterhouse business for the City of New Orleans to the Crescent City Live-Stock Landing and Slaughter-House Company. The law required that the company allow any person to slaughter animals in the slaughterhouse for a fixed fee. The monopoly was created to give enormous profits to a small group of people in Louisiana. They could cheaply buy Texas cattle and then sell them for monopoly profits.

Several butchers brought suits challenging the grant of the monopoly. They argued that the state law impermissibly violated their right to practice their trade. The butchers invoked many of the provisions of the recently adopted constitutional amendments. They argued that the restriction created involuntary servitude, deprived them of their property without due process of law, denied them equal protection of the laws, and abridged their privileges and immunities as citizens.

The Supreme Court narrowly construed all of these provisions and rejected the plaintiffs’ challenge to the legislature’s grant of a monopoly. At the outset, the Court said that it recognized the importance of the case before it as the first to construe the post–Civil War amendments. Justice Samuel Freeman Miller, writing for the Court, said, “No questions so far reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States . . . have been before this court during the official life of any of its present members.” Having recognized the significance of the case, the justices then proceeded to write a broad opinion negating much of what the post–Civil War amendments were meant to accomplish.

The Court said that the purpose of the Thirteenth and Fourteenth Amendments was solely to protect former slaves. Justice Miller wrote that “[t]he most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times . . . [that there was] one pervading purpose found in them all,” namely, “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him.”

The Court then interpreted each of the provisions of the Fourteenth Amendment very narrowly, as if they were written solely to achieve this limited goal. For example, the Court said that the Equal Protection Clause was meant to protect only blacks and offered this prediction: “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” That, of course, is not what the Constitution says. The Fourteenth Amendment could have been written so that it was limited to guaranteeing equal protection to former slaves or to those of African descent. But instead it says that “no person” shall be denied equal protection of the laws.

For almost a century after the Slaughter-House Cases, the Court followed this narrow reading of the Equal Protection Clause and refused to use it to stop other types of discrimination. For example, in 1875, two years after the Slaughter-House Cases, the Supreme Court held that it was constitutional to deny women the right to vote. Virginia Minor, a leader of the women’s suffrage movement in Missouri, attempted to register to vote on October 15, 1872, in St. Louis County. Missouri refused to allow this, because she was a woman. Her husband, Francis Minor, who was a lawyer, filed a lawsuit against Reese Happersett, the registrar who had rejected her application to register to vote. Minor argued that the denial of the right to vote to women violated equal protection and infringed on the “privileges or immunities” of citizenship guaranteed by the Fourteenth Amendment. In Minor v. Happersett, in 1875, the Court flatly rejected these contentions and held it constitutional for a state to deny women the right to vote.

It took another forty-five years, until the Nineteenth Amendment was adopted in 1920, for women to be granted the right to vote. It was not until ninety-six years after that, in 1971, that the Supreme Court for the first time found that sex discrimination violated equal protection. The Court’s prophecy in the Slaughter-House Cases that equal protection would never be used except to stop race discrimination turned out to be wrong, but it took a century for the Court to abandon that view, which so blatantly ignored the Fourteenth Amendment’s assurance that no person may be denied equal protection of the laws.

There are other aspects of the Court’s decision in the Slaughter-House Cases that never have been abandoned, despite their very restrictive view of a constitutional amendment that was intended to broadly protect people from state and local government power. Section 1 of the Fourteenth Amendment says that no state “shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Earlier justices had ruled that the phrase “privileges or immunities” referred to fundamental rights that people possess. This provision of the Fourteenth Amendment clearly was meant to ensure that state governments could not infringe on the basic liberties that individuals possess by virtue of being U.S. citizens.

But in the Slaughter-House Cases, the Supreme Court essentially read this provision out of the Constitution. The Court held that the Privileges or Immunities Clause was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws. Justice Miller wrote that “such a construction . . . would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. . . . We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.” The Court was explicit that “privileges and immunities . . . are left to the State governments for security and protection, and not by this article placed under the special care of the federal government.”

It is astounding that five years after the Constitution was amended to prevent states from denying citizens their basic rights, their privileges or immunities of citizenship, the Court said that the federal judiciary could not use that provision to strike down state and local laws. This was immediately evident and was noted by the dissenting justices. Justice Stephen Johnson Field, in dissent, lamented that under the majority’s view, the Privileges or Immunities Clause “was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” The entire point of the Fourteenth Amendment, including the Privileges or Immunities Clause, was to limit state and local governments; the Supreme Court in the Slaughter-House Cases ignored this and rendered the Privileges or Immunities Clause a nullity.

In fact, such has been the case: The Privileges or Immunities Clause was rendered meaningless by the Slaughter-House Cases, and it has been ever since. Professor Edward Corwin remarked that “[u]nique among constitutional provisions, the Privileges or Immunities Clause of the Fourteenth Amendment enjoys the distinction of having been rendered a practical nullity by a single decision of the Supreme Court rendered within five years after its ratification.” In fact, in the entire history of the Privileges or Immunities Clause, only twice has the Court found anything to violate it, and one of those decisions has been overruled.

If the Court wanted to uphold the Louisiana law, it could have decided the case narrowly by holding that being a butcher, practicing one’s trade, is not a “privilege or immunity” of citizenship. Instead, as in Dred Scott, the Court decided to rule very broadly and did so in a clearly mistaken and unfortunate way.

Separate but Equal

The Privileges or Immunities Clause might have been used to protect the fundamental rights of African Americans from infringement by state and local governments. But even without it, the Court could have done so under the Equal Protection Clause. In fact, the Slaughter-House Cases even said that this was the basic purpose of the assurance of the provision: protecting those of African descent from discrimination.

But for almost a century, the Court refused to do so. An institution that exists especially to protect minorities did exactly the opposite, consistently upholding laws that harmed minority races. The Court did not create the racist attitudes that led to the laws that required segregation of the races. The Court did not adopt those laws. But the Court could have declared them unconstitutional and held that laws mandating segregation are based on the assumption of the superiority of one race and the inferiority of another and that such a distinction would be inconsistent with a guarantee of equal protection of the laws. Or the Court could have ruled narrowly by finding that the facilities were not equal and that separate and unequal facilities violate the Constitution. Either way, the Court could have prevented and ended the apartheid that lasted for decades.

The most important such case was Plessy v. Ferguson, in 1896. It, too, is widely regarded as one of the Supreme Court’s worst decisions. In Plessy v. Ferguson, the Court upheld laws that mandated that blacks and whites use “separate, but equal facilities.”

A Louisiana law adopted in 1890 required railroad companies to provide separate but equal accommodations for whites and blacks; the law required there to be separate coaches, divided by a partition, for each race.

In 1892, Louisiana prosecuted Homer Adolph Plessy, a man who was seven-eighths Caucasian, for refusing to leave the railroad car assigned to whites. This was a test case deliberately brought by those who opposed government-mandated segregation. Plessy—an “octoroon” by virtue of his having one of eight great-grandparents being of African descent—was regarded as the ideal plaintiff to challenge laws like Louisiana’s, which had become so common in the South after the end of Reconstruction.

In a 7–1 decision, the Supreme Court ruled against Plessy and upheld the Louisiana law. The opinion was written by Justice Henry Billings Brown, who had been appointed to the Court in 1890 by President Benjamin Harrison. Brown had grown up in Massachusetts and practiced law in Detroit before becoming a federal judge. Although a northerner, Justice Brown concluded that laws requiring “separate, but equal” facilities are constitutional and declared, “[W]e cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.” The same Congress that ratified the Fourteenth Amendment also had voted to segregate the District of Columbia public schools, indicating that it did not see government-mandated segregation as a denial of equal protection.

Plessy argued to the Supreme Court that laws requiring segregation were based on an assumption of the inferiority of blacks and thus stigmatize them with a second-class status. Such actions by a state government, deeming one race superior and the other inferior, should be regarded as inimical to the Constitution’s guarantee of equal protection of the laws. The Supreme Court rejected this argument: “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” Stunningly, then, the Court said that it was the fault of the “colored race” that it saw laws segregating the races as being based on a belief in white superiority, even though that notion was often expressed in legislatures and by elected officials, especially in southern states.

Justice John Marshall Harlan was the sole dissenter and wrote that “[e]very one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.” Of course, he is right: laws requiring segregation were all about proclaiming the superiority of one race and the inferiority of the other. Justice Harlan concluded eloquently that “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”

Harlan saw the obvious parallel with the Court’s decision a half-century earlier in Dred Scott v. Sandford. He wrote: “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case. . . . The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.”

Justice Harlan, of course, was correct: Plessy v. Ferguson is remembered together with Dred Scott as being among the most tragically misguided Supreme Court decisions in American history. But it took more than a half-century for the Supreme Court to repudiate its racist holding. After Plessy, “separate but equal” became the law of the land, even though separate was anything but equal. Southern states, border states, and even parts of some northern states had laws that segregated the races in every aspect of life. Whites and blacks were born in separate hospitals, played in separate parks and on separate beaches, drank from separate water fountains and used separate bathrooms, attended separate schools, ate at separate restaurants and stayed at separate hotels, served in separate Army units, and were buried in separate cemeteries. By every measure and standard, separate was never equal, as the facilities for blacks were never nearly the same as those for whites.

It is often forgotten today that Plessy v. Ferguson was not an isolated Supreme Court decision. In case after case, the Court reaffirmed and upheld the ability of states to enforce apartheid.

For example, “separate but equal” was expressly approved in the realm of education. In Cumming v. Board of Education, in 1899, the Court upheld the government’s operation of a high school open only to white students while none was available for blacks. The Court emphasized that local authorities were to be allowed great discretion in allocating funds between blacks and whites and that “any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.”

In Berea College v. Kentucky, in 1908, the Supreme Court affirmed the conviction of a private college that had violated a Kentucky law that required the separation of the races in education. In Gong Lum v. Rice, in 1927, the Supreme Court concluded that Mississippi could exclude a child of Chinese ancestry from attending schools reserved for whites. The Court said that the law was settled when it came to racial segregation being permissible and that it did not “think that the question is any different, or that any different result can be reached . . . where the issue is as between white pupils and the pupils of the yellow races.”

Is it reasonable to have expected the Supreme Court to have ruled differently? Absolutely. There is no reason that a majority of the justices could not have accepted Justice Harlan’s reasoning in Plessy. The Court certainly could have decided that laws mandating segregation were inconsistent with a Constitution guaranteeing equal protection of the laws. The Court could have explained that such government-required segregation is based on the premise of the superiority of one race and the inferiority of another, which is inherently a denial of equal protection. The Court’s reasoning in Plessy v. Ferguson was fundamentally flawed because it ignored the Fourteenth Amendment’s mandate of “equal protection” and how government-mandated segregation is inherently at odds with this constitutional requirement.

There is no way around the conclusion that the Court tragically failed in the area of race for the first century and a half of American history.

The End of Separate but Equal

In 1954, this changed when, in Brown v. Board of Education, the Court unanimously held that laws requiring segregation of the races violated equal protection. It is often forgotten how close the Court came to an opposite conclusion.

In October Term 1952, the Supreme Court granted review in five cases that challenged the doctrine of separate but equal in the context of elementary and high school education. At the time, seventeen states and the District of Columbia required segregation of their public schools. The school systems challenged in the five cases before the Supreme Court involved schools that were totally unequal. For example, one of the cases was a challenge to South Carolina’s educational system. The white schools had one teacher for every twenty-eight pupils; the black schools had one teacher for every forty-seven students. The white schools were brick and stucco; the black schools were made of rotting wood. The white schools had indoor plumbing; the black schools had outhouses.

The five cases were argued together during October Term 1952. The justices could not agree on a decision, and the cases were set for new arguments in the following year. According to Justice William O. Douglas’s autobiography, had the Supreme Court ruled then, the decision would have been 5–4 to affirm Plessy v. Ferguson and the separate-but-equal doctrine:

When the cases had been argued in December of 1952, only four of us—Minton, Burton, Black, and myself—felt that segregation was unconstitutional. . . . It was clear that if a decision had been reached in the 1952 Term, we would have had five saying that separate but equal schools were constitutional, that separate but unequal schools were not constitutional, and that the remedy was to give the states time to make the two systems of schools equal.

The Supreme Court asked the parties to brief several questions that focused primarily on the intent of the framers of the Fourteenth Amendment. This did not bode well for those opposing segregation. After all, the same Congress that had ratified the Fourteenth Amendment also passed a law that required segregation of the District of Columbia public schools. Never, though—not before Brown and not since—has a majority of the Court taken the “originalist” position that the meaning of a constitutional provision is limited to what its framers intended. The vast majority of justices have realized that even if the original meaning of a constitutional provision could be determined, there is no reason for that interpretation to be controlling. In the words of Chief Justice John Marshall, it is a document that was meant to be adapted and endure for ages to come.

In the summer between the two Supreme Court terms, Chief Justice Fred Vinson died of a heart attack, and President Dwight Eisenhower made a recess appointment of California governor Earl Warren to be the new chief justice. The cases were argued on October 13, 1953, and Chief Justice Warren persuaded all of the justices to join a unanimous decision holding that separate but equal was impermissible in the realm of public education. Brown vividly illustrates, as much as any case in American history, the importance of judicial appointments. It is impossible to know what the Court would have done had Fred Vinson still been chief justice, but it is unlikely that the Court would have been unanimous or gone nearly so far as it did in Brown. Earl Warren, who had spent decades as an elected official, understood the importance of unanimity and had the personal political skills to make it happen.

Brown and the cases that followed it, ending racial segregation, are the most powerful evidence against my thesis about the failures of the Supreme Court. The Court used its authority and influence to help transform society and to perform its core mission of protecting the constitutional rights of minorities. In chapter 4, I return to Brown and the decisions that followed it and argue that the Court did less than it is remembered for and much less than it should have done.

But even conceding the importance and success of these decisions, it must be remembered that it took the Court until 1954—eighty-six years after the ratification of the Fourteenth Amendment and fifty-eight years after Plessy v. Ferguson—to get there. Furthermore, the Court’s use of the Equal Protection Clause to protect racial minorities was relatively short-lived. Earl Warren was chief justice from 1954 to 1969. After being elected president, in 1968, Richard Nixon quickly had four vacancies to fill on the Supreme Court and picked four justices—Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist—who were far more conservative than the individuals they replaced. Blackmun, over time, became quite liberal, but in his initial years on the Court he so consistently voted together with Burger in a conservative direction that they came to be referred to as the “Minnesota Twins,” a reference to their home state’s baseball team.

The Modern Court and Racial Equality

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.”

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.”

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