Vanderbilt Law Review

First Page



The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. That is the case against the Supreme Court that this book presents.

I believe that recognizing this is important in order to focus on how to improve the institution and make it much more likely to succeed in the future. In Chapter 9 of the book, I offer a number of proposals for changing the Court and how it operates.

Most of all, I wrote the book to be part of a conversation of how our society thinks and talks about the Supreme Court. I intentionally chose to write it for a trade press-VIKING--and hopefully in a way that is accessible to a large audience. There remains a stunning formalism in how people discuss the Supreme Court. In this presidential election year, every Republican candidate has embraced originalism and a view of judicial review that seemingly allows the justices to decide constitutional cases without regard to their own values and ideology. It is reflected in John Roberts's statement to the Senate Judiciary Committee at his hearing that justices are just "umpires."