The Volokh Conspiracy
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In Erwin Chemerinsky's new book, "The Case Against the Supreme Court," Chemerinsky argues that the Supreme Court is a huge disappointment and has failed at its most basic responsibilities. After reading Chemerinsky's summary at Politico and the LA Times, I wondered if he was just criticizing the Supreme Court for not agreeing with his policy preferences. So I decided to ask Chemerinsky if that was a fair summary of his book, and if not, why not. Chemerinsky graciously agreed to answer my questions for publication here at the Volokh Conspiracy.
I began with this question: Does your book argue that the Supreme Court is a disappointment because the Justices haven't read the Constitution correctly or because they're reaching results that conflict with your liberal policy preferences? Chemerinsky answered:
I am sensitive to the criticism that I am just writing a liberal critique of the Court. Here is what I wrote in response to this question being asked by Dahlia Lithwick for Slate: "I intentionally begin the book with Buck v. Bell, a case that no one, liberal or conservative would defend today. The first chapter is about the Supreme Court and race, especially focusing on its historic failures. No one today, liberal or conservative, would defend Dred Scott v. Sanford or Plessy v. Ferguson. The second chapter is about the Supreme Court in times of crisis. I don't believe anyone today would defend the Supreme Court's decisions in Schenk v. U.S. or Debs v. U.S. or Korematsu v. U.S. or Dennis v. U.S. The third chapter starts with the Child Labor Cases and the Court striking down the first federal law to protect children from being exploited in the workplace. Again, no one would defend that decision today. Thus, before ever getting to the contemporary cases, I think that there is a strong case against the Supreme Court that liberals and conservatives would agree to. I understand that the discussion of the Roberts Court cases will be perceived as more of a liberal critique. But I hope I have put the criticism in a larger context that cannot be dismissed as ideological."
Your question draws an interesting distinction between "reading the Constitution correctly" and "personal policy views." I don't believe that there is an objective, correct way to read the Constitution. I believe Dred Scott and Plessy and Korematsu and Buck v. Bell were wrong and believe I can support that in terms of what the Constitution should mean. It is both, then, about what I believe is correct and my personal policy views. I don't think anyone—justices or you or me—can separate those.
I responded by asking Chemerinsky if the book contained criticisms of liberal Justices and decisions that are generally thought to be liberal. Chemerinsky replied:
Yes, I criticize both liberal decisions and decisions by liberal justices. In Chapter 4, I am critical of the Court in Brown v. Board of Education and Gideon v. Wainwright for not going nearly far enough, resulting in schools that remain separate and unequal and criminal defendants often having grossly inadequate counsel. I would not characterize that as criticizing them for being insufficiently liberal; I would say it was the Court failing to do nearly enough to ensure implementation of its rulings.
In the concluding chapter, I begin by strongly criticizing an opinion by Justice Sotomayor in Hui v. Castenada, which order dismissal of a suit by a prisoner who suffered horribly from the denial of medical care. I do not know if Citizens United is liberal or conservative, except for the line-up on the Court, but I argue it was wrong.
Chemerinsky's answers raised the broader question of whether his view of the Constitution was just his view of public policy dressed up in constitutional garb. So I asked him: Outside of the book, are there instances in which your view of the Constitution's commands and your personal policy preferences diverge? And if so, what are they? He replied:
There are certainly instances in which I have a policy preference, but cannot reconcile them with the Constitution. I favor term limits for justices, but I believe it would violate the Constitution and would necessitate a constitutional amendment. I am not saying that there never is a difference between how one reads the Constitution and what one prefers from a policy perspective. But I do reject the idea that there is an objective, correct way to read the Constitution, or that one's reading of the Constitution is divorced from one's views about desirable policy. Reading the Constitution, I believe, always starts with the text and then considers framers' intent, structure, tradition, precedent, and public policy. But rarely is there a clear answer. Take the Second Amendment as an example. Is it coincidence that conservatives who favor gun rights interpret the Second Amendment in accord with their preferred policy, while liberals who favor gun control interpret the Second Amendment in accord with their preferred policy? This is what I meant when I said that "reading the Constitution correctly"and a policy preference often cannot be separated. Or to take the Fourth Amendment, in determining what is "reasonable," it is not possible to separate "reading the Constitution correctly" and a policy preference. Or think about the levels of scrutiny—what is a compelling or an important interest? How can that be separated from one's values and policy preferences?
Chemerinsky's answer led me to wonder about why we bother with constitutional law scholarship. If arguments about the Constitution are just thinly-veiled policy positions that cannot be separated from the author's personal prefernces, what is the point of constitutional law scholarship? If everyone is just following their policy preferences, then academic arguments about the Constitution can't change anyone's mind. If that's right, why bother writing or reading constitutional law scholarship? Chemerinsky replied:
I do not accept your characterization that arguments about the Constitution "are thinly-veiled policy positions." Sometimes they are about text and original understanding and structure and history and precedent. But sometimes they are about policy, not thinly veiled at all, such as in what is a compelling or an important or a legitimate interest. The constitutionality of affirmative action turns, in large part, on a judgment over whether diversity in the classroom is a compelling government interest. That can be argued about and people can be (hopefully) persuaded. The constitutionality of laws preventing marriage equality turns on whether there is any legitimate (or important or compelling) interest in denying gays and lesbians of the right to marry. That can be argued over. People can change their minds, as society clearly has done as to marriage equality.