Erwin Chemerinsky, one of America’s leading commentators on constitutional law, recently put out an Op-Ed piece in which he concluded, reluctantly, that the US Supreme Court had failed America:
It’s time to say it: The Supreme Court has largely failed throughout American history at its most important tasks and at the most important times.
[. . .]
The Supreme Court exists, above all, to enforce the Constitution against the will of the majority. The very existence of the Constitution, a document made intentionally quite difficult to change, reflects the desire to limit what political majorities can do. . . .
The court plays an especially important role in safeguarding the rights of minorities of all types who should not have to rely on democratic majorities for their protection. The court also is crucial in times of crisis in ensuring that the passions of the moment do not cause basic values to be compromised or lost.
The question that I challenge all to ask is whether over the course of American history the court has succeeded in these vital tasks. The answer is disturbing. I, of course, am not saying that every Supreme Court decision is misguided or even that the majority of them are wrong. That would be a silly claim. But I do contend that the court often has tragically failed, especially when it was most needed to enforce the Constitution.
When it comes to the Supreme Court, we tend to be a bit schizophrenic, not really having a good sense what we expect of it, other than to “do the right thing, all the time” which is, of course, fine as far as it goes, but not particularly practical or coherent.
Some of the divisions among the public on the role of the Court were thrown into sharp relief earlier this month when the Supreme Court declined to grant certiorari on a number of same-sex marriage cases coming from the federal courts of appeal — including Kitchen v. Herbert, the case that has successfully challenged Amendment 3 and where both the State of Utah and the plaintiffs urged the Court to grant certiorari.
The Court has created a right to same-sex marriage!
The Court has abdicated its responsibility to interpret the Constitution and firmly declare the law!
It has usurped the will of the people!
But really, all that happened was the Supreme Court declined to take a case that had already been appealed.
Granted, the Court declined to weigh in on a constitutional question of great significance, even when pretty much everyone in the country wanted it to. That’s kind of frustrating.
But to the extent we expect the Supreme Court to conclusively settle all questions of federal constitutional law that arise, perhaps we need to recalibrate our expectations a little bit.
Does the Supreme Court have the obligation to protect the constitutional rights of individuals against government overreach?
Clearly yes. And no.
When a case is properly before the Court, it has an obligation to decide the matter before it and make an appropriate ruling. In cases where the Court’s decision is that there has been a constitutional overreach, it has to grant a remedy. But the Constitution quite strongly suggests that it is not the responsibility of the Court to provide a general cure for our constitutional ills; rather, it’s obligation is to harmonize federal law when in disharmony and adjudicate cases and controversies involving specific individuals where it is uniquely — or at least better — positioned than other judicial options. The entire machinery of the Court and its systems and the procedures it uses in decision-making are geared toward the individual case, rather than the general, abstract constitutional question.
Other state and federal courts already exist for individuals to vindicate their rights. Every state court system has at least trial and appellate systems that provide litigants a right of appeal. The Supreme Court is not, principally, about vindication. It’s a necessity of a federal political system; it reconciles conflicts more than it simply corrects.
Does the Supreme Court exist to save us from our neighbors or, even, from ourselves? Should we want it to? Does it really “exist[ ], above all, to enforce the Constitution against the will of the majority”?
There’s an allure that is associated with a constitutional appeal to the Supreme Court — the possibility of a permanent and validated triumph is hard to resist. But every constitutional triumph for one is a defeat for someone else that makes them all the more intransigent and unwilling to compromise. And when the parties to a case are, in effect, political parties, effort that might have been directed toward legislation is directed toward posturing for litigation in hopes of the big win.
And often everyone ends up losing with sloppy, minimum input, watered down or overheated legislation adopted for the express purpose of passing or failing a judicial challenge.
Expecting the Supreme Court to solve our country’s problems, cure bad legislation, and act as the primary line of defense for minorities is asking too much. You can’t deluge the Court with expertly crafted political questions thinly disguised as litigation and expect it to be apolitical.
While the Supreme Court has gotten cases wrong before, and will again, it hasn’t failed America. In fact, it’s done pretty darn well by an America that, in recent years especially, hasn’t given it very much to work with.