From slavery to segregation, from Jim Crow to George Bush, the Supreme Court has been consistently on the wrong side of the law.
The critique comes not from some outraged, isolated blogger, but from one of the most respected voices in Constitutional law: Erwin Chemerinsky, Dean of the UC Irvine Law School and author of the newly published The Case Against The Supreme Court.
"The Supreme Court", Chemerinsky says in a phone interview, "has so often failed through American history at the most important times in the most important ways. There've been successes, but not nearly enough, and far too many failures. If they were to get a letter grade over the course of their history, I'd give them a C."
The Case Against The Supreme Court argues that the Court is the opposite of Rodney Dangerfield -- it gets too much respect, given its elitist, pro-business, anti-individual rights record.
"I realize I'm often making excuses for the Supreme Court in my own teaching and scholarship," Chemerinsky says, "and if we look at the court over the course of history, it so often failed at the most important times, at the most important tasks.
"We tend to remember the great successes, like Brown vs. Board of Education, and forget the great failures like Dred Scott, Plessy vs. Ferguson. And I think it's because we want to believe that our government overall is a success."
Even the Brown decision, which ushered in school desegregation, was only a qualified success, Chemerinsky writes. Chief Justice Earl Warren, so intent on achieving unanimity among the Justices, punted on specifics with regard to implementation, allowing school districts to drag their feet for years or even decades after the landmark case was decided.
The Supreme Court has repeatedly favored slaveholders over slaves, businesses over workers, and the rights of states over those of individuals. In death penalty cases, the Court's record is especially egregious.
"It takes four votes to grant cert [agree to hear a case]," Chemerinsky points out, "and five votes to stay an execution. So there can be instances where the Justices vote to take a death penalty case, but they don't stop the execution. The person can be executed before the Court can hear the case."
The Court has always been an elitist institution, Chemerinsky argues, and that legacy continues today. While the face of the Court appears different, with the bench now featuring three women, two Justices of color, one Hispanic woman, and no Protestants (each for the first time in history), the song remains the same. The Justices all come from the same intellectual backgrounds -- mostly Harvard and Yale Law Schools, mostly academics, mostly from the Northeast, and mostly elevated from other elite benches.
"It's very non-representative geographically of the country," Chemerinsky adds. "Only two of the nine Justices grew up west of the Mississippi. Only one was appointed west of Mississippi. Every borough in New York has a Justice except for Staten Island. So it is and likely always will be an elitist court. It would be much better off if it had more trial lawyers, more trial judges, and elected officials. It's a Court that's not properly balanced in terms of experience, in terms of geography."
Part of the problem, Chemerinsky argues, is that Supreme Court rules and traditions mitigate against the Court doing a better job. Life appointments, guaranteed by the Constitution, mean that some Justices, like Chief Justice Roberts, Elena Kagan, or Clarence Thomas, could serve for close to half a century. Some Presidents, like Jimmy Carter, get no appointments, while others, like Richard Nixon, had four vacancies in his first two years. The random concentration of power in certain Presidents and certain Justices doesn't exactly create justice for all, Chemerinsky suggests.
In his book, Chemerinsky advocates 18-year, non-renewable term limits for Justices. "If that were adopted," he says, "and I do think it would require a constitutional amendment, then every president would get a vacancy every two years. Now, it's just the accident of history."
The actuarial tables make the 2016 election extraordinarily important, Chemerinsky says. "Most Justices have left the Court in their early eighties. Right now, Justice Ginsberg is 82, Justice Scalia is 79, Justice Kennedy is 78 and Justice Breyer is 76. That means that between 2017 and January 2021, you're going to have these four justices all in that age range. And if it's a two-term president, then it seems inevitable that there'll be these four vacancies to fill over the course of the next eight years."
Still, the future of the Supreme Court barely comes up in presidential campaigns.
"For those who care whether abortion remains safe and legal," Chemerinsky says, "it's going to depend on who's elected president in 2016. Gun rights is another example. The Court should be one of the most important issues [in the election]. One of the most long-lasting legacies of any president is whom he or she puts on the Supreme Court. Yet it doesn't have the saliency that's proportionate to its importance to people's lives."
In The Case Against The Supreme Court, Chemerinsky also criticizes Judge Scalia for his sarcastic tone. "Other justices have been at time sarcastic," he says. "No justice in history has so frequently been caustic and sarcastic as Antonin Scalia. It makes for amusing reading for law students, but I think it's a terrible model to law students to lawyers about how to read and speak to each other."
The Supreme Court overall communicates poorly, the Dean writes. Multiple, lengthy opinions give lower courts and the police little clear guidance as to what the law really says. Failing to offer explanations for denials of cert leaves attorneys wondering just what kind of cases or arguments actually appeal to the Justices. Though, by far, the biggest mistake the Court makes is excluding cameras from its work.
"There should be cameras in every Supreme Court proceeding," Chemerinsky says. "This is our government at work. There's about 350 seats in the Supreme Court chambers. When the court next week hears and oral argument as to whether or not the right to marriage equality, that affects millions of people. They should be able to watch the argument. I wrote about a number of proposals with regard to how the Court can communicate better, but none is more important than cameras in the courtroom. My guess is only if Congress would pass a bill that would require, suppose that I don't see it as likely to get adopted any time soon.
"I've heard Justices say they're afraid that clips of oral arguments will be played on the news and taken out of context. Maybe the clips will be used and make the justices look bad. I love to refer to this as the Jon Stewart effect. It's their fear that they're going to get mocked on Jon Stewart."
Chemerinsky also expresses great disappointment in the Court's choice to decide Bush v. Gore. "My sense was they didn't trust the Florida Supreme Court. They thought the Florida Supreme Court was controlled by Democrats and would come out in favor of Gore, and so they decided the state law question and kept the Florida Supreme Court from deciding it.
"I have a tremendous love and reverence for the Constitution," he adds. "I have tremendous love and reverence for the Court as an institution. But it's tempered by facing the reality that the Supreme Court has so often failed. I think we can make the court a much better institution. But it's still a human institution and it will make mistakes as human institutions do. We can just do it much better. It can be much better."
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