September 30, 2014 Leave a comment
Law professor and scholar Erwin Chemerinksy has written a new book about the Supreme Court. Some particularly interesting excerpts from Dahlia Lithwick’s interview with him about it:
Your argument for the failure of the court rests largely in the criticism that the most central role of the Supreme Court is to “enforce the Constitution against the will of the majority.” I imagine that a lot of your critics would disagree with that assessment. I imagine others would contend the Roberts court does protect minorities, say, when it protects the rights of billionaires to contribute to campaigns, or of religious Christians who don’t want to fund contraception. What makes you so certain that acting as a counter-majoritarian check is the defining role of the court?
I think that there are two important questions here. First, why believe that a pre-eminent role of the court is to protect minorities? To me, it goes to the question of: Why have a Constitution? Why should a democracy be governed by a document that is difficult to change? It is not to protect the majority; they generally can protect themselves through the democratic process. It is minorities who cannot protect themselves through majoritarian democracy. I believe that the Constitution exists especially (though not exclusively) to protect the rights of minorities of all types.
Second, who is a minority? That is a difficult question. The key, based on my definition above, is those who are unlikely to be able to protect themselves in the majoritarian process. Examples include racial minorities, criminal defendants, the homeless, prisoners. Billionaires obviously are very able to protect themselves in the political process.
Also, I have been railing against John Robert’s “balls and strikes” ever since he said it. Loved to see Chemerinksy strike it down and extend the metaphor:
It is a grossly inaccurate description of what Supreme Court justices do. Supreme Court justices do not simply call balls and strikes. They determine the rules and the strike zone. Justices have tremendous discretion in the cases coming before them, and the descriptions of Roberts and Sotomayor portray it otherwise. Every Supreme Court decision makes the law. When the court decides whether states can prohibit marriage equality, that will make the law whichever way the court describes it. John Roberts and Sonia Sotomayor would have been confirmed almost no matter what they did at their confirmation hearings. Each gave the American public a very misleading sense of what the court does.