Erwin Chemerinsky is dean of the University of California–Irvine School of Law and a litigator who has argued cases before the highest court in the land. But in his new book, “The Case Against The Supreme Court,” he takes the justices to task — not just the current nine, but their predecessors, too. He recently did an interview with Dahlia Lithwick, Slate’s peerless legal columnist, in which they touched on a topic I’ve discussed several times over the years:
Lithwick: Your argument for the failure of the court rests largely in the criticism that the most central role of the Supreme Court is to “enforce the Constitution against the will of the majority.” I imagine that a lot of your critics would disagree with that assessment. I imagine others would contend the Roberts court does protect minorities, say, when it protects the rights of billionaires to contribute to campaigns, or of religious Christians who don’t want to fund contraception. What makes you so certain that acting as a counter-majoritarian check is the defining role of the court?
Chemerinsky: I think that there are two important questions here. First, why believe that a pre-eminent role of the court is to protect minorities? To me, it goes to the question of: Why have a Constitution? Why should a democracy be governed by a document that is difficult to change? It is not to protect the majority; they generally can protect themselves through the democratic process. It is minorities who cannot protect themselves through majoritarian democracy. I believe that the Constitution exists especially (though not exclusively) to protect the rights of minorities of all types.
Second, who is a minority? That is a difficult question. The key, based on my definition above, is those who are unlikely to be able to protect themselves in the majoritarian process. Examples include racial minorities, criminal defendants, the homeless, prisoners. Billionaires obviously are very able to protect themselves in the political process.
Lithwick: It’s important to emphasize that your book is not an indictment of the Roberts court (although you do have a chapter titled “Is the Roberts Court Really So Bad?”) and instead an argument that the Supreme Court, almost unerringly throughout its history, sides with the wealthy, the privileged, and the powerful. Can you explain why the court as an institution seems to align itself with those interests? Is it just too conservative an institution to act in the radical ways you seek? Are its members just too aligned with those interests by definition?
Chemerinsky: Yes, my book seeks to appraise the court throughout history and not just the Roberts court, though, of course, it discusses the Roberts court. You accurately state my thesis: Throughout history the court has overwhelmingly favored corporate power over employees, consumers, and the public, and has favored government power over individuals’ rights. I do not have a good or a sophisticated answer to your question of why. I think justices have overwhelmingly come from positions of privilege. Far more justices have been like John Marshall Harlan and John Roberts, having spent their careers representing corporations, than from being public defenders or public interest lawyers. I think, too, that the Court’s role has never been clearly enough defined in terms of enforcing the Constitution, protecting minorities, resisting the passions of the majority in times of crisis.