This article is part of a Perspective symposium on judicial review and the separation of powers.
I was delighted to read Damon Silvers and Erwin Chemerinsky’s responses to my article proposing the abolition of judicial review. This is an important and valuable discussion, but I have some criticisms to make of their arguments.
Silvers is more on my side. He admits that the current Supreme Court is out of control – adopting decisions based on brazenly contradictory reasoning, revealing nothing but an anarchic conservative will for power – and argues that it must be rebuilt and therefore brought under control. So far, so good.
His case for judicial review (only after a considerable curtailment of the current Court’s powers) is quasi-spiritual. The “rights and freedoms guaranteed to us by the Constitution as interpreted by our pre-Bush versus Gore legal traditions are what unites us as a nation,” he says. “The courts – not just the Supreme Court, but the powers of judicial review of the entire federal justice system – are what give meaning to the idea of rights in our system and what makes the United States a community single national.”
This represents a lack of imagination. One could easily imagine a system of rights enforced primarily by the federal bureaucracy that was just as effective in creating a national community. Or just look abroad. Finland, for example, is a constitutional republic without anything resembling American-style judicial review – there is a provision to that effect in its constitutionbut the higher courts have no formal power to strike down legislation, and by tradition parliament is given great deference anyway. Americans are unlikely to come out on top in a comparison with Finns about which rights are more secure or which community is more connected.
Chemerinsky, on the other hand, is more traditional and, I bet, more representative of American opinion. He admits that judicial review is inherently undemocratic, but then argues that this only reflects the fact that the Constitution is “deeply undemocratic.”
At a minimum, this is debatable. John Bingham, who drafted the 14th Amendment (the center of constitutional controversy today) would certainly disagree. While the Senate certainly violates fundamental tenets of democracy, as does the absurd Electoral College, Bingham insisted that the moral foundation of the Constitution was political equality—part of the reason he stipulated in his amendment that states that disenfranchise their voting populations must lose their representation in the House. The Court, of course, ignored this part of the Constitution.
But the core of Chemerinsky’s argument concerns the protection of minority rights. “Most importantly, those without political power have nowhere to turn for protection except the justice system. The political process has little incentive to protect unpopular minorities, such as racial or political minorities,” he writes. “While the Rehnquist and Roberts courts have a poor record of protecting the rights of prisoners, I don’t think it can be denied that judicial review has dramatically improved conditions for countless prisoners who would be abandoned by the political process. .”
I deny it. First, the courts also have no particular incentive to be sensitive to the constitutional rights of prisoners, or anyone else for that matter. It’s not like people in federal courtrooms fill out an exit survey after a verdict is handed down. Indeed, judges and magistrates are almost never punished for flagrant abuse of legal processor even abject senility. (And besides, if prisoners can vote, as is the case in some states and many peer countriesthe elect have such an incentive.)
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More importantly, the American justice system in general and the Supreme Court in particular have been the central architects of a gulag-scale mass incarceration system unparalleled in the wealthy world – and it goes back long before the Court Rehnquist. Chemerinsky emphasizes Gideon v. Wainwrightwhich theoretically required states to provide free attorneys to defendants, but it does not mention Strickland vs Washington (1984), who found that lawyers who had not argued against the death penalty at a sentencing hearing did not violate the Sixth Amendment; neither Jones v. Mississippi (2021), who argued that the state could imprison a child for life without even investigating whether he is incorrigibly dangerous.
Nor does it mention the Court’s entirely invented doctrine of “qualified immunity” for law enforcement officers (first created in 1967), which made it virtually impossible to sue them for violating your rights. Citing this doctrine, the Court recently refused to hear a case in which a prison guard put a prisoner on suicidal watch in a cell with a 30-inch cord, and continued to watch lazily as he hanged himself. Nor does it mention that the systematic abuse of power by prosecutors means approximately 95 percent criminal cases today are decided by plea bargain, rendering the right to counsel and trial almost meaningless.
All of this only scratches the surface of appalling legal precedent in criminal justice. The rights “enjoyed” by millions of American prisoners are about the worst possible evidence for the defense of judicial review imaginable.
All of this casts doubt on Chemerinsky’s largely positive view of the justice system. In fact, the prison system provides an object lesson in the drawbacks of American judicial government. Trials are slow, they are complicated, they are often decided on arbitrary technicalities or total nonsenseand being so expensive that they are horribly biased to the rich and well connected. Thanks to our bloated legal system, these same problems have plagued the US government for much of its history.
As historian Richard White points out in his golden age story“Taken together, the rulings of liberal judges contributed to a remarkable expansion of governmental power in the 1890s and into the twentieth century…Judges and courts became fundamental sites of state-building, exercising in states United of the functions that the bureaucracies assumed in other countries.”
This is about as true today in the Second Golden Age as it was in the 1890s, and the results are terrible. One of the main reasons why American infrastructure is so expensive, for example, is that most major proposals are instantly teeming with chases of any interested party, which invariably entails costs due to attorneys’ fees and fees. Then, because the courts move at a snail’s pace at the best of times and provide countless mechanisms for participants to prolong the process even further, construction is delayed, further increasing the cost of finance, materials and manpower.
Similarly, one of the main reasons federal rulemaking has become incredibly sclerotic is the blizzard of lawsuits that bury any rule that does something right. The agencies were thus beaten into a defensive position, and spend years and huge sums of money trying to protect their work from possible attack. It’s both unnecessary and often pointless, because the right-wing justices of the Court will overrule them anyway – indeed, in West Virginia vs. EPAhe invalidated a rule that didn’t even exist at all.
By way of conclusion, all of this raises a question for which I had no time for in my original article: if the courts are an unreliable mechanism for protecting the rights of minorities against abuses of state power, what is the best option? One option is mass unionization. Going back to Finland, a few years ago a Conservative government proposed to cut the wages of a few hundred postal workers. This sparked a strike, which inspired sympathy strikes, and the resulting controversy forced the government to resign and call new elections. Strong unions, organized on the traditional basis of “an injury to one is an injury to all”, are a far more powerful protective mechanism than the courts, in large part because joining a union does not require to spend $100,000 to sue and hope you don’t draw a wild Trumper judge.