Erwin Chemerinsky’s
Op-Ed, The Supreme Court’s Supremely Flawed Record, published on October 4th, outlined this
constitutional law professor’s apprehensions surrounding this year’s Court
term. Those being that the Supreme Court too often sides with the government,
and not individuals. After providing evidence surrounding some of the Court’s recent
and past decisions, Chemerinsky arrives at the conclusion that the Supreme Court
is in dire need of reform, and he suggests several ways that the Supreme Court could
be changed for the better.
For
the most part, I agree with Chemerinsky’s reasoning. For an institution of government
that was specifically designed to deliver justice, the Supreme Court has
certainly failed before. Recently, the Court’s decision to remove limits on
monetary contributions to political candidates reinforced the influence of the
rich. The Court enforced slavery towards
the beginning of our history, and supported segregation for over 5 decades.
During World War I, when citizens were imprisoned for criticizing the draft,
and World War II, when Japanese Americans were placed in camps, the Court ruled
in favor of the government, and not the people and their freedoms. In light of
this, it seems rather obvious that the Supreme Court is in need of intense reform.
Or is it?
Here is where I take issue with Chemerinsky’s argument. Just
last week a Supreme Court decision led to the legalization of same-sex marriage
in over 5 states, bringing the total up to 30, including Washington D.C. In 1954, the Court declared racially
segregated schools inherently unequal (Brown v. Board of Education of Topeka),
and therefore unconstitutional, demonstrating that the Court is indeed capable
of correcting itself. In Griswold v. Connecticut (1965), the Court struck down
a state law prohibiting the use of contraceptives, and further claimed a “right
to privacy” that provided the basis for protecting women’s abortion rights.
Is the Court perfect? No. Not by a long shot. However,
that does not change the fact that radical reform is most likely not the right
way to go. The Court changes about as fast as we, as a society, and as a
country, change (if a bit slower due to the lifelong terms). They are ultimately
a group of 9 people, as flawed as everyone else, and their decisions will
continue to reflect the changing times, subject
to the same pressures as any other group, organization, or person (as was the
case in World Wars I and II). While some reforms may help the Court to better
fulfill its constitutional role, radical change seems unnecessary and unhealthy.
The institution of shorter terms, for example, or the establishment of “bipartisan merit selection
committees,” would most likely lend itself to the politicization of the
justices (an already growing problem). Alternatively, making the Court more
transparent (through the use of televised proceedings, as suggested by Mr.
Chemerinsky) might be a step in the right direction.
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