An Activist By Any Other Name: Chemerinsky's New Book

I've attended seminars at which Erwin Chemerinsky has spoken three or maybe four times. The first time, I was persuaded he was a genius. The second time I was a little uneasy. He speaks typically for an hour without notes of any sort, dissecting recent Supreme Court decisions with a chipper sense of good will. I know this sounds harsh, but when the anecdotes are delivered in the same cadence time and time again, you do start to wonder. So I picked up his latest book with more than a little curiosity. What would he sound like in The Conservative Assault on the Constitution?

He sounds the the way he always does: Possessed of an uncanny and almost omniscient grasp of recent Supreme Court decisions. But what can he tell us about how conservatives have hijacked the courts and turned the Constitution into a necromancer's spell?

The story is by now familiar to all practitioners. Beginning with President Richard Nixon, the right has taken aim at the courts, the Supreme Court in particular. It has created an ideology all its own, originalism, and has transformed it into a cloak used to advance a very contemporary agenda: support for school desegregation has eroded, as have the rights of those accused of crime. Although we give lip service to federalism, the power of the federal government has grown at the expense of the people. The courts are increasingly friendly to big business and hostile to civil rights claims. Anyone who has practiced law during the past 20 years has watched the courts drift further and further to the right.

I was encouraged to see Chemerinsky chronicle this trend. I am so caught up in individual cases I often fail to see the larger picture. I know that civil rights claims rarely make it to a jury trial any longer. I know that the Fourth Amendment is vanishing. I know that immunity claims for government officials expand year by year. But I really didn't have a sense of what a tidal wave these changes represent until reading Chemerinsky's book. A good law school professor and dean, he is a patient teacher.

I was encouraged to read him take aim at sovereign immunity, the bizarre notion that in this republic of ours government is somehow beyond the reach of ordinary justice: "A doctrine derived from the premise `the king can do no wrong' deserves no place in American law. The United States was founded on rejection of monarchy and royal prerogative. American government is based on the fundamental recognition that the government and government officials can do wrong and must be held accountable. Sovereign immunity undermines that basic notion."  Amen, I say.

Oddly, Chemerinsky writes about sovereign immunity but neglects mention of an even more potent tool in the conservative arsenal of weapons used to keep ordinary people out of court, qualified immunity. This most obvious tool of judicial activism gives the benefit of the doubt to government actors in close cases and accounts for more dismissals prior to trial than any other legal doctrine. By way of example, the Practicing Law Institute in New York each year published a two-volume practice aid on litigation arising under 42 U.S.C. Section 1983, a federal statute that permits ordinary people to sue government actors for violating a person's federal rights. Fifteen years ago, one small chapter in the second volume of the aid was devoted to qualified immunity. The second volume of last year's aid was devoted to qualified immunity cases, and was more than 1,000 pages long. Just where did this doctrine come from? No one claims he framers intended it; no statute was passed by Congress to limit these claims. No, conservative judges cooked it up, and when they did, no one complained it was due to activism. I wanted to hear Chemerinsky's take on this doctrine. Strangely, the book is silent on the topic.

Chemerinsky calls for an end to the sham federal judicial confirmation hearings have become. He notes, correctly, that there is no such thing as a neutral way to interpret the constitution. Policy references are required to apply constitutional doctrine to conflict. We should require judges to answer hard questions about controversies rather than permit them to dodge questioning with dishonest locutions suggesting that Supreme Court justices are mere umpires: they do make law. We are entitled to know what kind of laws they will make on cases likely to come before them. If they won't answer questions honestly, then perhaps the Senate ought to refuse to vote to confirm. That would be a refreshing change.

The Constitution is not a democratic document, he argues. It is designed to create a constitutional democracy in which minorities are provided protection against the will of a majority. Yes, a majority of Americans may want prayer in the schools. That does not mean the Court stages a coup when it votes against school prayer: it simply means the minority is protected from a majority that is too filled with its own vision of the good to respect competing visions.

This book is a good read on recent and emerging trends in constitutional doctrine: It is, after all, the work of one of the nation's foremost professors of constitutional law. But for all that, the book delivers far less than it promises. It is not enough to remind again and again that our liberties hang in a balance far too often tipped by 5-4 votes. That this rightward coup has taken place is apparent. Chemerinsky avoids discussing the social and intellectual history of how this happened. I wanted to read about the creation, funding and staffing of right-wing think tanks, and the hijinks of the Federalist Society. These were the seedbeds of the surge to the right; originalism's secret history was first worked out at retreats and seminars. It became the ticket to judicial advancement only after it first won the hearts and minds of law students, professors and intellectuals patrolling think tanks and looking for power. The book providing a critical history of this has not yet been written.

This book is vintage Chemerinsky: concise, accurate in the main, and delivered with the crisp good will of a man who can recite the Supreme Court's recent doctrinal history almost as if from memory. But for all its brilliance, the book has a detached feel. It is the book of an intellectual unfamiliar with conflict at the trial level. That doesn't make it a bad book; it is simply limited. But do read it. If nothing else, it will serve as a counterweight to the silent coup taking place decision by decision in the United States Supreme Court.

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