Jacquelyn Martin/AP Photo
Outside the Supreme Court, June 30, 2022
This article is part of a Prospect symposium on judicial review and the separation of powers.
I was pleased to read the responses from Damon Silvers and Erwin Chemerinsky to my article proposing the abolition of judicial review. It’s an important, valuable discussion, but I have criticisms of both their arguments.
Silvers is more on my side. He admits that the current Supreme Court is out of control—passing decisions based on shamelessly contradictory reasoning, revealing nothing but lawless conservative will to power—and argues it needs to be reconstructed and thus reined in. So far, all to the good.
His case for judicial review (only after a considerable paring-back of the current Court’s powers) is quasi-spiritual. The “rights and freedoms guaranteed to us by the Constitution as interpreted through our pre–Bush v. Gore legal traditions are what bind us together as a nation,” he claims. “The courts—not just the Supreme Court’s, but the entire federal court system’s powers of judicial review—are what makes the idea of rights have meaning in our system and what makes the United States a single national community.”
This represents a failure of imagination. One could easily imagine a system of rights enforced mostly through the federal bureaucracy that was equally effective at creating a national community. Or simply look abroad. Finland, for instance, is a constitutional republic without anything like American-style judicial review—there is a provision for it in its constitution, but top courts have no formal power to strike down legislation, and by tradition parliament is granted wide deference anyway. Americans are not likely to come out well in a comparison with Finns as to whose rights are more secure, or which community is more bound together.
Chemerinsky, by contrast, is more traditional and, I’ll wager, more representative of American opinion. He admits that judicial review is inherently anti-democratic, but then argues that this only reflects the fact that the Constitution is “profoundly anti-democratic.”
At a minimum, this is disputable. John Bingham, who drafted the 14th Amendment (the center of constitutional disputation today) would certainly disagree. While the Senate certainly violates basic principles of democracy, as does the nonsensical Electoral College, Bingham insisted that the moral foundation of the Constitution was political equality—part of why he stipulated in his amendment that states that disenfranchise their voting population must lose representation in the House. The Court, naturally, has ignored this part of the Constitution.
But the core of Chemerinsky’s argument is about protecting minority rights. “Most importantly, those without political power have nowhere to turn for protection except the judiciary. There is little incentive for the political process to protect unpopular minorities, such as racial or political minorities,” he writes. “Admittedly, the Rehnquist and Roberts Courts have a less-than-stellar record of protecting prisoners’ rights, but I do not think that one could deny that judicial review has dramatically improved prison conditions for countless inmates who would be abandoned by the political process.”
I do deny it. In the first place, courts also have no particular incentive to be responsive to the constitutional rights of prisoners, or anyone else for that matter. It’s not like the people in federal courtrooms fill out an exit survey after some verdict has been rendered. Indeed, judges and justices virtually never get punished for gross abuse of the legal process, or even abject senility. (And by the way, if prisoners can vote, as is the case in some states and many peer countries, elected officials do have such an incentive.)
More importantly, the American court system in general and the Supreme Court in particular have been central architects of a gulag-scale system of mass incarceration without parallel in the rich world—and that goes back long before the Rehnquist Court. Chemerinsky points out Gideon v. Wainwright, which theoretically forced states to provide free attorneys to defendants, but he doesn’t mention Strickland v. Washington (1984), which held that counsel that did not argue against the death penalty in a sentencing hearing did not violate the Sixth Amendment; nor Jones v. Mississippi (2021), which held that the state could imprison a child for life without even investigating whether he or she is incorrigibly dangerous.
Nor does he mention the wholly Court-invented doctrine of “qualified immunity” for law enforcement officers (first established in 1967), which has made it all but impossible to sue them for violating your rights. Citing this doctrine, the Court recently declined to hear a case in which a prison guard had put a prisoner on suicide watch in a cell with a 30-inch cord, and proceeded to watch idly while he hanged himself. Nor does he mention that systematic prosecutorial abuse of power means about 95 percent of felony cases today are decided via plea bargain—rendering the right to an attorney and a trial all but meaningless.
All that is just scraping the surface of appalling Court precedent on criminal justice matters. The rights “enjoyed” by the millions of American prisoners are just about the worst possible evidence in defense of judicial review that could be imagined.
All this casts doubt on Chemerinsky’s broadly positive view of the judiciary. In reality, the prison system provides an object lesson in the downsides of America’s court-based government. Lawsuits are slow, they are complicated, they are often decided on arbitrary technicalities or total nonsense, and being so costly they are hideously biased toward the rich and well-connected. Thanks to our hypertrophied legal system, these same problems have afflicted American government for much of its history.
As historian Richard White points out in his history of the Gilded Age, “Taken as a whole, the decisions of the liberal judges contributed to a remarkable expansion of government power in the 1890s and into the twentieth century … Judges and courts became basic sites of state building, performing functions in the United States that bureaucracies undertook in other countries.”
That is about as true today in the Second Gilded Age as it was in the 1890s, and the results are terrible. A major reason why American infrastructure costs so much, for instance, is that most big proposals are instantly swarmed with lawsuits from any interested party, which invariably raises costs due to the expense of lawyers and fees. Then, because courts move at a snail’s pace at the best of times and provide innumerable mechanisms for participants to drag the process out even more, construction is delayed, further jacking up the cost of financing, materials, and labor.
Similarly, a core reason why federal rulemaking has become incredibly sclerotic is the blizzard of lawsuits that buries any rule that does anything good. Agencies have thereby been beaten into a defensive crouch, and spend years and huge amounts of money attempting to lawsuit-proof their work against any possible attack. It’s both wasteful and often pointless, because the right-wing justices on the Court will just strike them down anyway—indeed, in West Virginia v. EPA, it struck down a rule that didn’t even exist at all.
As a closing comment, all this raises a question I did not have time for in my original article: If courts are an unreliable mechanism for protecting the rights of minorities against abusive state power, what is a better option? One option is mass unionization. To return to Finland, some years ago a conservative government put forth a proposal to cut the wages of a few hundred postal employees. This sparked a strike, which inspired sympathy strikes, and the resulting controversy forced the government to resign and call new elections. Powerful unions, organized on the traditional basis of “an injury to one is an injury to all,” are a far more powerful mechanism of protection than courts—in large part because union membership doesn’t require spending $100,000 to file a lawsuit and hoping you don’t draw a feral Trumper judge.
