Vanderbilt Law Review


Suzanna Sherry

First Page



It is a pleasure and a privilege to write an introduction to this Symposium celebrating Dean Erwin Chemerinsky's important new book, The Case Against the Supreme Court. Chemerinsky is one of the leading constitutional scholars of our time and a frequent advocate before the U.S. Supreme Court. If he thinks there is a case to be made against the Court, we should all take it very seriously indeed. Chemerinsky's thesis may be stated in a few sentences. The primary role of the Supreme Court, in his view, is 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." Canvassing the Court's performance over two centuries, he concludes, first, that it has failed dismally at those tasks. Nevertheless, he reaches two additional conclusions: he believes that we can and should expect the Court to do better, and he outlines reforms that might help it do so.

Chemerinsky makes a strong case that the Court has historically failed to live up to its role. His primary historical examples-from Dred Scott v. Sanford and Plessy v. Ferguson to Buck v. Bell and Korematsu v. U.S.-are widely thought of as reprehensible. His contemporary examples are more controversial, as Professor Brian Fitzpatrick's contribution to the Symposium illustrates, but Chemerinsky really doesn't need those examples to support his conclusions.) Where there is room for argument is on his second and third conclusions: Is it reasonable to expect the Court to live up to Chemerinsky's expectations, and how can we help ensure that it does so?

In the pages that follow, constitutional scholars address these questions.