Erwin Chemerinsky is broken hearted. "Almost forty years ago," he writes, "I decided to go to law school because I believed that law was the most powerful tool for social change and that the Supreme Court was the primary institution in society that existed to stop discrimination and to protect people's rights.' Smitten by the Court, Chemerinsky was blind to its historical role as a protector of privilege, and its structural limitations as an agent of progressive social change. Placing the Court on a pedestal, he abstracted it from the culture and the society in which it operates. For decades political scientists, historians, and other scholars have repeatedly shown that the Court is structurally conservative, institutionally constrained from furthering the causes that Chemerinsky cherishes, but Chemerinsky was too enamored to see. But now, thanks to repeated decisions by the Burger, Rehnquist, and Roberts Courts (prominently including, I suspect, Bush v. Gore), the romance has been shattered, and Chemerinsky can see somewhat more clearly. Now he understands what many have known for at least half a century, if not more: the Court "has rarely lived up to these lofty expectations and far more often has upheld discrimination and even egregious violations of basic liberties." And yet he still longs for his love. "No institution in society," he writes in the last paragraph in his book, "is more important than the Supreme Court in ensuring liberty and justice for all." Chemerinsky is wrong. His romantic, ahistorical, and unsupported belief in the triumph of rights over politics leads his focus away from other institutions of government and broader society where progressive change largely occurs. The Supreme Court can only act on the margins. Yet the broken-hearted lover still longs for his love.
Chemerinsky's method is to examine Supreme Court decisions that "both liberals and conservatives today would consider grave mistakes." His basic argument is several-fold. First, he repeatedly states that the purpose of the Supreme Court is "to enforce the Constitution against the will of the majority." More specifically, he writes that the "two preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of repressive desires of political majorities."
Chemerinsky's second argument, his "thesis... is that the Court has largely failed at both of these tasks": Throughout American history, the Court usually has been on the side of the powerful government and business at the expense of individuals whom the Constitution is designed to protect. In times of crisis, when the passions of the moment have led to laws that compromise basic rights, the Court has failed to enforce the Constitution.
Chemerinsky's third argument is that all is not lost. The Supreme Court, he believes, can do better. This includes the Warren Court, which "could have and should have done so much more." The judiciary, Chemerinsky writes, "can be a moral leader and protect our core values from hostile public pressure . . . ."' In the end, Chemerinsky "seek[s] to challenge all of us to think more critically about the Court and to confront the reality that, by any measure, it has too often failed at its most important responsibilities under the Constitution."
Gerald N. Rosenberg,
The Broken-Hearted Lover: Erwin Chemerinsky's Romantic Longings for a Mythical Court,
69 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol69/iss4/6