Ruth Bader Ginsburg won one of her first Supreme Court victories against sex discrimination by arguing in behalf of a young Air Force officer, Sharron Frontiero, over housing and medical benefits for her recently married husband. Married servicemen got the benefits automatically, but servicewomen had to prove that their husbands depended on them for more than half of their support.
The Supreme Court ruled for Frontiero in 1973 in a decision that laid the groundwork for what ultimately became the current “intermediate scrutiny” test used to judge the validity of laws treating men and women differently because of their sex. Ginsburg often relates the back story of the decision as she recounts the history of gender equality in the United States.
Ginsburg now needs to meet Kathy Barker, a widow who is being denied Social Security survivor benefits because of another discriminatory rule adopted by the federal government. The Social Security Administration (SSA) denied Barker benefits in September because the state of Texas, where she now lives, does not recognize her legal marriage to her now deceased wife, Sara, in Massachusetts in 2010.
Texas is one of a rapidly dwindling number of states — now 18 — with laws on the books denying marriage rights to gay or lesbian couples. Three federal appeals courts have ruled same-sex marriage bans unconstitutional; the Supreme Court earlier this month decided to leave those decisions alone rather than review them to produce a nationwide ruling on the issue. Ginsburg said in September that there was “no hurry” for the court to act until there was a conflict among the federal circuits.
Barker’s case proves the need for the court to act — sooner, not later. The Obama administration has gone pretty far in recognizing same-sex marriages for purposes of federal law since the Supreme Court struck down the Defense of Marriage Act (DOMA) in 2013. SSA announced in June that it would provide marriage-based benefits to married same-sex couples living in states that recognized their marriages. But the agency said that it is bound by a statutory provision to apply Texas law — the state of Barker’s current “domicile” — in determining her eligibility for spousal benefits.
The civil rights organization Lambda Legal filed a lawsuit on Barker’s behalf last week [Oct. 22] in federal court in Washington, D.C., contesting the SSA’s policy. The agency’s “continued incorporation of discriminatory state marital laws” to deny spousal benefits violates the U.S. Constitution, the lawyers alleged in the 33-page lawsuit. Joining the suit as a co-plaintiff is the Washington-based advocacy group the National Committee to Preserve Social Security and Medicare.
Barker is no less entitled to spousal Social Security benefits than Frontiero was when she applied for medical and housing benefits for her husband. Kathy and Sara had been together for 30 years before they got married late in 2010 in Massachusetts, where they had met and where Sara’s family lived. They had moved to Texas in 1984 to find less expensive housing and be closer to Kathy’s family.
Sara survived breast cancer in the late 1980s, but she was diagnosed with an aggressive form of cancer in 2010 — prompting their decision to get married later that year. With Sara’s condition worsening, they both retired from their jobs in June 2011. Kathy was a full-time caregiver until Sara died in March 2012.
Social Security provides a lump-sum death benefit and monthly survivor benefits to the surviving spouse of an opposite-sex marriage; since June, the same benefits have been available to the surviving spouse of a same-sex couple in states that recognize same-sex marriages. But the agency points to a wordy statutory provision (42 U.S.C. § 416(h)(1)(A)(i)) as requiring it to apply the marriage law of the state where the surviving spouse is “domiciled” at the time of the application for benefits or where the deceased spouse was “domiciled” at the time of the death.
Based on Texas law, the agency in September denied Barker’s application for what she expected to be about $1,210 per month in survivor benefits. With those benefits, Barker, who is 62, says she can delay applying for her own retirement benefits until age 66; applying for early benefits would reduce the monthly payments by about $583 (from $2,130 to $1,547). The added monthly lifetime benefits, the suit notes, “would make a significant difference in the quality of Kathy’s life as she ages.”
The lawsuit notes the “multitude” of state and federal courts that have ruled rule same-sex marriage bans unconstitutional in the year-plus since the DOMA decision, including a federal district court in Texas in February. The Fifth U.S. Circuit Court of Appeals is expected to hear arguments on the case before the end of the year; other circuit courts have moved faster, and the Fifth Circuit’s conservative bent makes the outcome uncertain.
Barker’s Social Security suit will take a while to advance through the courts. Perhaps a ruling by the Fifth Circuit to uphold the Texas law will give the Supreme Court what Ginsburg says it needs to resolve the underlying issue. Some court watchers say the delay is all for the good: giving the justices and the public time to get ready for the seemingly likely nationwide ruling to recognize freedom to marry for all. In the meantime, however, Kathy Barker waits for a Social Security check.
Sunday, October 26, 2014
Sunday, October 19, 2014
In Texas, Many Voters Won't Be Counted
The Supreme Court worked well past midnight Friday before allowing the state of Texas to enforce a voter ID law that a federal court judge had found to amount to intentional discrimination against African Americans, Hispanics, and the poor. The unexplained order, with three liberal justices in dissent, mocks all those pre-election public service announcements urging the importance of each and every qualified citizen to go to the polls and cast his or her vote.
The court included no explanation for its action in the order, issued in the predawn hours on Saturday morning. By inference, however, justices in the majority apparently agreed with the state’s argument that it would be disruptive to change voting rules so close to the Nov. 4 election. In a strongly worded dissent, Justice Ruth Bader Ginsburg said the argument is weak to begin with and is outweighed by the damage from disenfranchising hundreds of thousands of would-be voters under a discriminatory law. Justices Sonia Sotomayor and Elena Kagan joined the dissent.
The court’s action turned aside an effort by a coalition of civil rights groups, backed by the Obama administration, seeking to reinstate an injunction against using the law issued on Oct. 9 by a federal judge in Corpus Christi. Judge Nelva Gonzales Ramos had concluded, after a two-week trial, that the 2011 law could disenfranchise as many as 600,000 would-be voters who lack any of the government-issued IDs called for in the law.
Texas went to the conservative-dominated Fifth U.S. Circuit Court of Appeals complaining about changing voting rules so close to an election. The state relied in large part on a Supreme Court precedent, Purcell v. Gonzales (2006), that has been widely interpreted as barring courts from ordering changes in voting procedures on the eve of an election.
A three-judge panel consisting of two conservative Republican appointees and a rookie Obama appointee agreed with the state and put Ramos’s injunction on hold. Writing for the two GOP appointees, Judge Edith Clement said the state had an interest in “preserving the status quo” so close to the election. The Obama appointee, Judge Gregg Costa, said the court should be “extremely reluctant” to allow an election to be conducted under a law found to be discriminatory but bowed to the Supreme Court precedent.
The Supreme Court has been unusually busy this election season with voter ID laws. For those keeping score, the court in three previous cases had allowed Ohio and North Carolina to enforce laws imposing new restrictions on voting but blocked Wisconsin from implementing its new voter ID requirements. The distinguishing factor in the Wisconsin case, it would seem, was that a federal court judge had blocked the law in July and the Seventh Circuit had changed the rules in September by lifting the injunction after some absentee ballots had already been mailed out.
Surely, late changes in voting procedures can be a problem for election officials. As Ginsburg pointed out in the dissent, however, Texas would have had no great problem in reverting to the pre-2011 procedures for voter identification. She also noted that Judge Ramos had found the state’s efforts to educate voters about the ID law had been “woefully lacking” and “grossly” underfunded.
Ginsburg also contended that the Supreme Court precedent, Purcell, has been given exaggerated importance. The court’s brief, unsigned opinion in that case overturned a decision by the Ninth Circuit one month before the 2006 election to block an Arizona voter ID law. The court faulted the Ninth Circuit, however, not so much for the timing of its decision as for its failure to explain its reasons for blocking the law after a lower court had upheld it.
The Texas case is completely different. Ramos’s 147-page opinion is thoroughly documented and backed by precedent; the Fifth Circuit majority makes no effort to question her conclusion that the Texas legislature knew and intended that the law would make voting disproportionately harder for African Americans and Hispanics than for Anglos. The Supreme Court majority similarly did not engage on the racial discrimination issue; the unsigned order merely recites in legalese that the plaintiffs’ application to vacate the Fifth Circuit’s stay of the lower court injunction is denied.
Procedurally, the court’s inaction points to a fallacy of its decision in 2013 to effectively eliminate the preclearance requirement imposed on Texas and other Southern states under the 1965 Voting Rights Act. In his opinion for the conservative majority in that case, Chief Justice John G. Roberts Jr. noted that the act’s nationwide provision against racial discrimination in voting, section 2, would still be available as an enforcement tool. Joshua Block, a lawyer with the American Civil Liberties Union, took to Twitter to note the contradiction. “Remember when SCOTUS said the availability of speedy injunctive relief under Section 2 was an adequate substitute for pre-clearance?” he tweeted.
Attorney General Eric Holder interrupted his weekend long enough to denounce the court’s action. It was “a major step backward,” Holder said, for the court to leave in place a law “designed to discriminate.” Perhaps the impact of the law will be less than its opponents fear, but the court’s decision to let the law stand departs from the widely shared civic belief in a universal franchise as a fundamental principle of modern American democracy.
The court included no explanation for its action in the order, issued in the predawn hours on Saturday morning. By inference, however, justices in the majority apparently agreed with the state’s argument that it would be disruptive to change voting rules so close to the Nov. 4 election. In a strongly worded dissent, Justice Ruth Bader Ginsburg said the argument is weak to begin with and is outweighed by the damage from disenfranchising hundreds of thousands of would-be voters under a discriminatory law. Justices Sonia Sotomayor and Elena Kagan joined the dissent.
The court’s action turned aside an effort by a coalition of civil rights groups, backed by the Obama administration, seeking to reinstate an injunction against using the law issued on Oct. 9 by a federal judge in Corpus Christi. Judge Nelva Gonzales Ramos had concluded, after a two-week trial, that the 2011 law could disenfranchise as many as 600,000 would-be voters who lack any of the government-issued IDs called for in the law.
Texas went to the conservative-dominated Fifth U.S. Circuit Court of Appeals complaining about changing voting rules so close to an election. The state relied in large part on a Supreme Court precedent, Purcell v. Gonzales (2006), that has been widely interpreted as barring courts from ordering changes in voting procedures on the eve of an election.
A three-judge panel consisting of two conservative Republican appointees and a rookie Obama appointee agreed with the state and put Ramos’s injunction on hold. Writing for the two GOP appointees, Judge Edith Clement said the state had an interest in “preserving the status quo” so close to the election. The Obama appointee, Judge Gregg Costa, said the court should be “extremely reluctant” to allow an election to be conducted under a law found to be discriminatory but bowed to the Supreme Court precedent.
The Supreme Court has been unusually busy this election season with voter ID laws. For those keeping score, the court in three previous cases had allowed Ohio and North Carolina to enforce laws imposing new restrictions on voting but blocked Wisconsin from implementing its new voter ID requirements. The distinguishing factor in the Wisconsin case, it would seem, was that a federal court judge had blocked the law in July and the Seventh Circuit had changed the rules in September by lifting the injunction after some absentee ballots had already been mailed out.
Surely, late changes in voting procedures can be a problem for election officials. As Ginsburg pointed out in the dissent, however, Texas would have had no great problem in reverting to the pre-2011 procedures for voter identification. She also noted that Judge Ramos had found the state’s efforts to educate voters about the ID law had been “woefully lacking” and “grossly” underfunded.
Ginsburg also contended that the Supreme Court precedent, Purcell, has been given exaggerated importance. The court’s brief, unsigned opinion in that case overturned a decision by the Ninth Circuit one month before the 2006 election to block an Arizona voter ID law. The court faulted the Ninth Circuit, however, not so much for the timing of its decision as for its failure to explain its reasons for blocking the law after a lower court had upheld it.
The Texas case is completely different. Ramos’s 147-page opinion is thoroughly documented and backed by precedent; the Fifth Circuit majority makes no effort to question her conclusion that the Texas legislature knew and intended that the law would make voting disproportionately harder for African Americans and Hispanics than for Anglos. The Supreme Court majority similarly did not engage on the racial discrimination issue; the unsigned order merely recites in legalese that the plaintiffs’ application to vacate the Fifth Circuit’s stay of the lower court injunction is denied.
Procedurally, the court’s inaction points to a fallacy of its decision in 2013 to effectively eliminate the preclearance requirement imposed on Texas and other Southern states under the 1965 Voting Rights Act. In his opinion for the conservative majority in that case, Chief Justice John G. Roberts Jr. noted that the act’s nationwide provision against racial discrimination in voting, section 2, would still be available as an enforcement tool. Joshua Block, a lawyer with the American Civil Liberties Union, took to Twitter to note the contradiction. “Remember when SCOTUS said the availability of speedy injunctive relief under Section 2 was an adequate substitute for pre-clearance?” he tweeted.
Attorney General Eric Holder interrupted his weekend long enough to denounce the court’s action. It was “a major step backward,” Holder said, for the court to leave in place a law “designed to discriminate.” Perhaps the impact of the law will be less than its opponents fear, but the court’s decision to let the law stand departs from the widely shared civic belief in a universal franchise as a fundamental principle of modern American democracy.
Sunday, October 12, 2014
On Marriage Rights, Court Sows Doubt and Delay
Liberty finds no refuge in a jurisprudence of doubt.
The Supreme Court had egg on its face twice last week as it dealt with one of the most sensitive issues on its docket: marriage rights for gay and lesbian couples. First, the long orders list distributed to reporters on Monday [Oct. 6] omitted 33 pages, including those listing the court’s stunning decision not to hear appeals from five states seeking to salvage laws banning same-sex marriages.
Three days later, Justice Anthony M. Kennedy signed an interim order blocking same-sex marriages in Nevada even though the state had made no request to delay complying with the federal appeals court decision striking down its ban. The court’s public information office was forced into acknowledging the next day that the Nevada case was listed by mistake on an order that did put things on hold in Idaho.
These were paperwork mistakes made by the court’s staff: the court clerk’s office in the first instance, perhaps one of the justice’s law clerks in the other. The week’s bigger mistake, however, was the responsibility of the justices themselves: the confusion created by their walking away from the marriage equality issue at least for the moment.
The justices had cases from five states — Utah, Oklahoma, Virginia, Wisconsin, and Indiana — fully teed up for them to consider. The losing and the winning sides in all five urged the court to hear the cases for a speedy, nationwide resolution of the issue.
Instead, the court simply denied certiorari — to use the legal term for declining to review the lower court decisions — without a single word by explanation from any of the justices. Samuel Bagenstos, a law professor of the University of Michigan, aptly noted on Twitter that he could recall no instance in which the court had declined to review lower court decisions that had ruled so many state laws unconstitutional under federal law.
True, the cases did not present a conflict among federal circuit courts, the most frequent criterion for the Supreme Court to take up a case. Indeed, federal courts have been one ruling short of unanimous in the past year in striking down state bans on same-sex marriages. A federal judge in Louisiana in August broke the string of 30 or so consecutive victories for gay marriage advocates.
All the other federal courts, including the appeals courts for the Tenth, the Fourth, the Seventh, and, most recently, the Ninth Circuit, have found the gay marriage bans unconstitutional. As the justices returned from their summer recess, three of those rulings were ready for their consideration.
The court had skirted the marriage issue in June 2013 when it dismissed, for lack of legal standing, an effort by the proponents of California’s Proposition 8 to reinstate the state’s gay marriage ban after the Ninth Circuit had struck it down. This summer, however, Justice Ruth Bader Ginsburg told the Associated Press’s Mark Sherman that the court would not duck the issue a second time around.
Ginsburg later appeared to contradict herself by telling a law school audience on Sept. 16 that there was “no urgency” for the court to decide the issue in the absence of a circuit conflict. As Ginsburg knows full well, however, the court often agrees to hear a case even without a circuit conflict because of the importance of the issue. Surely, marriage rights for same-sex couples qualifies.
With four votes needed to grant certiorari, the cert denials imply as a matter of mathematics that one or more of the four liberal justices are not ready to force the issue. The same apparently goes for the four conservatives, including Chief Justice John G. Roberts Jr., who dissented from the ruling in June 2013 to strike down the federal Defense of Marriage Act (DOMA). And maybe Justice Anthony M. Kennedy is not ready for a showdown on the issue either.
As suggested by BuzzFeed’s Chris Geidner, Kennedy may be waiting for gay marriage to be legal in so many states that the court’s eventual ruling will simply ratify a national consensus. That strategy accords with Ginsburg’s favorable recollection of the court’s decade-long wait before striking down state bans on interracial marriages in 1967. By then, Ginsburg has recalled, most of those state laws were gone and the country was ready to accept a court decision to get rid of the rest.
If this is the strategy, perhaps it spares the Supreme Court from politicized attacks, and perhaps it even serves the eventual cause of marriage equality. The court’s decision on Friday [Oct. 10] to turn down Idaho’s bid to delay gay marriage may indicate that any other states seeking to delay the inevitable will also be turned away.
Still, the court’s actions clearly contradict the passage attributed to Kennedy at the start of the plurality opinion reaffirming abortion rights 22 years ago. Despite clearing the way for gay marriages in a dozen or more states, the court last week left the law in doubt and justice delayed for same-sex couples in the 15 other states still awaiting rulings. It was not the court’s proudest moment.
— Planned Parenthood v. Casey (1992) (plurality opinion)
The Supreme Court had egg on its face twice last week as it dealt with one of the most sensitive issues on its docket: marriage rights for gay and lesbian couples. First, the long orders list distributed to reporters on Monday [Oct. 6] omitted 33 pages, including those listing the court’s stunning decision not to hear appeals from five states seeking to salvage laws banning same-sex marriages.
Three days later, Justice Anthony M. Kennedy signed an interim order blocking same-sex marriages in Nevada even though the state had made no request to delay complying with the federal appeals court decision striking down its ban. The court’s public information office was forced into acknowledging the next day that the Nevada case was listed by mistake on an order that did put things on hold in Idaho.
These were paperwork mistakes made by the court’s staff: the court clerk’s office in the first instance, perhaps one of the justice’s law clerks in the other. The week’s bigger mistake, however, was the responsibility of the justices themselves: the confusion created by their walking away from the marriage equality issue at least for the moment.
The justices had cases from five states — Utah, Oklahoma, Virginia, Wisconsin, and Indiana — fully teed up for them to consider. The losing and the winning sides in all five urged the court to hear the cases for a speedy, nationwide resolution of the issue.
Instead, the court simply denied certiorari — to use the legal term for declining to review the lower court decisions — without a single word by explanation from any of the justices. Samuel Bagenstos, a law professor of the University of Michigan, aptly noted on Twitter that he could recall no instance in which the court had declined to review lower court decisions that had ruled so many state laws unconstitutional under federal law.
True, the cases did not present a conflict among federal circuit courts, the most frequent criterion for the Supreme Court to take up a case. Indeed, federal courts have been one ruling short of unanimous in the past year in striking down state bans on same-sex marriages. A federal judge in Louisiana in August broke the string of 30 or so consecutive victories for gay marriage advocates.
All the other federal courts, including the appeals courts for the Tenth, the Fourth, the Seventh, and, most recently, the Ninth Circuit, have found the gay marriage bans unconstitutional. As the justices returned from their summer recess, three of those rulings were ready for their consideration.
The court had skirted the marriage issue in June 2013 when it dismissed, for lack of legal standing, an effort by the proponents of California’s Proposition 8 to reinstate the state’s gay marriage ban after the Ninth Circuit had struck it down. This summer, however, Justice Ruth Bader Ginsburg told the Associated Press’s Mark Sherman that the court would not duck the issue a second time around.
Ginsburg later appeared to contradict herself by telling a law school audience on Sept. 16 that there was “no urgency” for the court to decide the issue in the absence of a circuit conflict. As Ginsburg knows full well, however, the court often agrees to hear a case even without a circuit conflict because of the importance of the issue. Surely, marriage rights for same-sex couples qualifies.
With four votes needed to grant certiorari, the cert denials imply as a matter of mathematics that one or more of the four liberal justices are not ready to force the issue. The same apparently goes for the four conservatives, including Chief Justice John G. Roberts Jr., who dissented from the ruling in June 2013 to strike down the federal Defense of Marriage Act (DOMA). And maybe Justice Anthony M. Kennedy is not ready for a showdown on the issue either.
As suggested by BuzzFeed’s Chris Geidner, Kennedy may be waiting for gay marriage to be legal in so many states that the court’s eventual ruling will simply ratify a national consensus. That strategy accords with Ginsburg’s favorable recollection of the court’s decade-long wait before striking down state bans on interracial marriages in 1967. By then, Ginsburg has recalled, most of those state laws were gone and the country was ready to accept a court decision to get rid of the rest.
If this is the strategy, perhaps it spares the Supreme Court from politicized attacks, and perhaps it even serves the eventual cause of marriage equality. The court’s decision on Friday [Oct. 10] to turn down Idaho’s bid to delay gay marriage may indicate that any other states seeking to delay the inevitable will also be turned away.
Still, the court’s actions clearly contradict the passage attributed to Kennedy at the start of the plurality opinion reaffirming abortion rights 22 years ago. Despite clearing the way for gay marriages in a dozen or more states, the court last week left the law in doubt and justice delayed for same-sex couples in the 15 other states still awaiting rulings. It was not the court’s proudest moment.
Sunday, October 5, 2014
A Jilted Lover's Case Against the Supreme Court
The future chief justice John G. Roberts Jr. closed his prepared statement at his confirmation hearing before the Senate Judiciary Committee by invoking the image of the Supreme Court as the guardian of justice for the powerless. As a lawyer in private practice, Roberts recalled that whenever he appeared before the Supreme Court in a case against the government, he was confident that he could win if only he could convince the justices that he had the law on his side.
After his nine years in office, the Roberts Court’s record bears little resemblance to the heroic image that Roberts painted back then, according to the critical account in the new book The Case Against the Supreme Court. As constitutional law scholar Erwin Chemerinsky tells it, victories for the voiceless or powerless have been hard to come by from the Roberts Court.
The card-carrying civil libertarian dean of the University of California-Irvine School of Law details the current court’s familiar record of siding with businesses in cases brought by investors, customers, or employees and with the government in cases brought by victims of government abuse or overreach. But Chemerinsky has gone beyond the easy task for a liberal of railing against Roberts and the four other Republican-appointed justices in the usually reliable conservative majority.
Instead, Chemerinsky has prepared an advocate’s case against the Supreme Court not just for the past decade but throughout its 225-year history. “My claim,” Chemerinsky writes even while acknowledging the court’s positive accomplishments, “is that the Court has often failed where and when it is most needed.”
After making this bold claim, however, Chemerinsky backs away from bold proposals such as eliminating judicial review in hopes that the political branches would be impelled to take their constitutional responsibilities more seriously. Instead, he endorses a laundry-list of worthy changes that he hopes would somehow lead the court to take its rights-protecting responsibilities more seriously, even at times of maximum stress.
Chemerinsky writes with the pain of a jilted lover. He entered law school in the 1970s with the Warren Court’s record fresh in mind, confident in the courts’ ability to effect social justice. Forty years later, however, he sees the 15-year Warren Court era as a blip and its rulings as less ambitious than they could have been and needed to be.
The bill of particulars against the court includes the great historic mistakes that will be familiar even to people with only a passing knowledge of American history. The slave-owning majority of the Supreme Court of the 1850s reduced African Americans to non-persons in the infamous Dred Scott case and threw out Congress’s attempt to keep slavery out of the newly settled territories. The court upheld racial segregation in Plessy v. Ferguson (1897), with only one justice in dissent. Five decades later, the court upheld without apology the World War II internment of Japanese Americans in the equally infamous decision of Korematsu v. United States (1944).
The list of historic disappointments is much longer. Chemerinsky opens with Buck v. Bell (1927), the 8-1 decision authored by the great justice Oliver Wendell Holmes Jr. that upheld the compulsory sterilization of a teenaged girl incorrectly diagnosed as mentally retarded. Chemerinsky notes that the decision has never been overruled; in fact, the more modern court held that a judge who ordered an involuntary sterilization with no legal authority whatever could not be sued for the damage he inflicted (Stump v. Sparkman, 1978).
What else? The court failed to protect free speech during World War I or in the McCarthy era of the 1950s. The court limited the ability of federal or state governments to regulate businesses to protect workers and consumers from the 1890s until FDR installed pro-New Deal justices in the so-called Revolution of 1937. And in a complex of lesser-known cases the court has sharply limited the ability of victims of unconstitutional government abuse to sue either the government or the individual officials responsible for their injuries.
Yes, but what about the Warren Court, Chemerinsky says he was asked while working on the book. The court barred racial segregation in Brown v. Board of Education (1954), he concedes, but then sat on the sidelines for a full decade. The court gave indigent criminal defendants the right to a lawyer (Gideon v. Florida, 1963), but did nothing to help the states pay for the new right. Later, the Burger, Rehnquist, and Roberts Courts weakened both decisions by limiting policies to promote racial diversity in schools and making it hard for defendants to prove unconstitutionally “ineffective” representation by court-appointed lawyers.
Despite the indictment, Chemerinsky rejects abolishing either the Supreme Court altogether or its power to declare laws or government actions unconstitutional. He says his fellow liberal advocates of “popular constitutionalism” have undue faith in the political branches’ fidelity to constitutional rights and ignore the invaluable role that the court’s decisions play in teaching Americans about constitutional rights.
Instead, Chemerinsky endorses merit selection of judges, including Supreme Court justices; more candid confirmation hearings; broadcast of Supreme Court proceedings; and 18-year term limits for justices. All well and good perhaps, but they cannot guarantee what Chemerinsky says we “desperately” need — a court “more likely to live up to its crucial constitutional responsibilities.”
After his nine years in office, the Roberts Court’s record bears little resemblance to the heroic image that Roberts painted back then, according to the critical account in the new book The Case Against the Supreme Court. As constitutional law scholar Erwin Chemerinsky tells it, victories for the voiceless or powerless have been hard to come by from the Roberts Court.
The card-carrying civil libertarian dean of the University of California-Irvine School of Law details the current court’s familiar record of siding with businesses in cases brought by investors, customers, or employees and with the government in cases brought by victims of government abuse or overreach. But Chemerinsky has gone beyond the easy task for a liberal of railing against Roberts and the four other Republican-appointed justices in the usually reliable conservative majority.
Instead, Chemerinsky has prepared an advocate’s case against the Supreme Court not just for the past decade but throughout its 225-year history. “My claim,” Chemerinsky writes even while acknowledging the court’s positive accomplishments, “is that the Court has often failed where and when it is most needed.”
After making this bold claim, however, Chemerinsky backs away from bold proposals such as eliminating judicial review in hopes that the political branches would be impelled to take their constitutional responsibilities more seriously. Instead, he endorses a laundry-list of worthy changes that he hopes would somehow lead the court to take its rights-protecting responsibilities more seriously, even at times of maximum stress.
Chemerinsky writes with the pain of a jilted lover. He entered law school in the 1970s with the Warren Court’s record fresh in mind, confident in the courts’ ability to effect social justice. Forty years later, however, he sees the 15-year Warren Court era as a blip and its rulings as less ambitious than they could have been and needed to be.
The bill of particulars against the court includes the great historic mistakes that will be familiar even to people with only a passing knowledge of American history. The slave-owning majority of the Supreme Court of the 1850s reduced African Americans to non-persons in the infamous Dred Scott case and threw out Congress’s attempt to keep slavery out of the newly settled territories. The court upheld racial segregation in Plessy v. Ferguson (1897), with only one justice in dissent. Five decades later, the court upheld without apology the World War II internment of Japanese Americans in the equally infamous decision of Korematsu v. United States (1944).
The list of historic disappointments is much longer. Chemerinsky opens with Buck v. Bell (1927), the 8-1 decision authored by the great justice Oliver Wendell Holmes Jr. that upheld the compulsory sterilization of a teenaged girl incorrectly diagnosed as mentally retarded. Chemerinsky notes that the decision has never been overruled; in fact, the more modern court held that a judge who ordered an involuntary sterilization with no legal authority whatever could not be sued for the damage he inflicted (Stump v. Sparkman, 1978).
What else? The court failed to protect free speech during World War I or in the McCarthy era of the 1950s. The court limited the ability of federal or state governments to regulate businesses to protect workers and consumers from the 1890s until FDR installed pro-New Deal justices in the so-called Revolution of 1937. And in a complex of lesser-known cases the court has sharply limited the ability of victims of unconstitutional government abuse to sue either the government or the individual officials responsible for their injuries.
Yes, but what about the Warren Court, Chemerinsky says he was asked while working on the book. The court barred racial segregation in Brown v. Board of Education (1954), he concedes, but then sat on the sidelines for a full decade. The court gave indigent criminal defendants the right to a lawyer (Gideon v. Florida, 1963), but did nothing to help the states pay for the new right. Later, the Burger, Rehnquist, and Roberts Courts weakened both decisions by limiting policies to promote racial diversity in schools and making it hard for defendants to prove unconstitutionally “ineffective” representation by court-appointed lawyers.
Despite the indictment, Chemerinsky rejects abolishing either the Supreme Court altogether or its power to declare laws or government actions unconstitutional. He says his fellow liberal advocates of “popular constitutionalism” have undue faith in the political branches’ fidelity to constitutional rights and ignore the invaluable role that the court’s decisions play in teaching Americans about constitutional rights.
Instead, Chemerinsky endorses merit selection of judges, including Supreme Court justices; more candid confirmation hearings; broadcast of Supreme Court proceedings; and 18-year term limits for justices. All well and good perhaps, but they cannot guarantee what Chemerinsky says we “desperately” need — a court “more likely to live up to its crucial constitutional responsibilities.”