Jonathan P. Baird

A shortened version of this piece appeared in the book review section of the Sunday Concord Monitor on February 22, 2015.

This fine book, written by law professor and constitutional law litigator, Erwin Chemerinsky, presents a balanced but ultimately unsatisfying view of the U.S. Supreme Court. Chemerinsky persuasively argues that the Supreme Court has largely failed as an institution. The Court has acted to protect Big Business and the rich. It has largely failed to protect minorities, workers, and victims of government abuses of power. Maybe its greatest failure has been around addressing racism.

Chemerinsky’s assessment is not just based on the Roberts’ Court. He goes back and surveys the entire history of the Supreme Court. He highlights cases that spotlight a past that is buried in the ancient volumes of United States Reports. He also does make a number of interesting and positive reform proposals.

I like the fact that he takes the Court off its pedestal. He discusses any number of embarrassingly awful decisions released by the Court over its history. These have significantly marked its long history although you rarely hear about them. The Court’s public image has been largely protected and whitewashed. The majesty of its building, the gowned tradition, a servile conventional legal community and legitimate respect for the rule of law have all acted to overly protect the court from criticism. Also, I think the public has only the dimmest awareness of the Court and its history.

In reading the book, I was reminded of a speech I once heard from a very great judge, A.Leon Higginbottom Jr., who was a federal judge on the Third Circuit. Judge Higginbottom died over 15 years ago. As I recall the speech he gave in Concord NH at then Franklin Pierce Law Center now UNH Law, he said that the judges who wrote the Dred Scott decision and Plessy v Ferguson all went to Harvard or Yale. He was not downing those schools. I think he was commenting on the class background of judges, a topic rarely discussed in polite society.

While there is no automatic correlation between class background and voting record, I do not think it is an accident that the Supreme Court is so conservative. Judges as a group come from very elite backgrounds. There are certainly exceptions but generally judges go to fancy schools and they have impeccable professional credentials. Justice Roberts is certainly an example. Many judges tend to see the world from the perspective of the 1%. They are almost invariably pro-Big Business and anti-worker. Too many judges have a Mitt Romney-like view of the 47%.

How many judges on the Supreme Court have ever represented poor and working people? Justice Ginsberg may be the only one on the court now. Even Justice Sotomayor, who was not elite, was a commercial litigator and a prosecutor. I remember a discussion in the book “The Brethren” on this point. Justice Marshall had represented people accused of murder not to mention the many cases he handled where he fearlessly represented minority clients in situations where he was in great personal danger. You do not see that kind of life experience reflected now in people who make it to the Court.

Some of the infamous cases Chemerinsky mentions are well known like Dred Scott where the Court ruled that Congress could not grant citizenship to slaves or their descendants because that would be a taking of property from slaveowners without due process or just compensation. I wanted to mention several others that I did not know about.

Chemerinsky leads off with the case of Buck v Bell, a 1927 case in which the Court upheld the involuntary sterilization of a poor white woman. At age 17, Carrie Buck, a Virginia native, was raped by a nephew. At the time she was living with foster parents because her father had fled and her mother was too poor to care for her. Her foster parents blamed Carrie for the rape. Although Carrie went through the sixth grade and was by all accounts a normal child, her foster parents involuntarily committed her to a state institution. A few months after her child was born, the state of Virginia took her daughter away. Then the state sought to have Carrie surgically sterilized. Virginia had a eugenics law that authorized the involuntary sterilization of those deemed to be of low intelligence.

By an 8-1 vote, the Supreme Court upheld the involuntary sterilization. In an opinion from Justice Oliver Wendell Holmes, the Court wrote that eugenics laws were desirable because they keep the country free from being “swamped with incompetence”. To quote Holmes:

“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad anough to cover cutting the Fallopian tubes. Three generations of imbeciles is enough.”

As Chemerinsky notes, thousands more were surgically sterilized as a result of this utterly classist, repulsive opinion.

In the criminal arena, Chemerinsky tells the story of Thomas Lee Goldstein who spent 24 years in prison for murders he did not commit. Goldstein was an engineering student and a Marine Corps veteran with no criminal record. Chemerinsky writes:

“When Goldstein was tried, there were no eyewitnesses to the murders and there was no confession. There was no physical evidence like DNA linking him to the murder site. The primary evidence against him was the false testimony of a longtime jailhouse informant, Edward Floyd Fink.”

Fink had a long criminal record and he was a heroin addict. He testified he was briefly in a jail cell with Goldstein and he heard Goldstein admit to the murders. Fink had a long history of getting deals from prosecutors in exchange for testifying against other inmates.

The prosecutors withheld from the defense all evidence about Fink’s record of making deals to get his sentences reduced. Fink’s evidence was virtually the only evidence against Goldstein.

After 24 years in prison, the federal court granted Goldstein’s habeas corpus petition. However, when Goldstein attempted to sue the District Attorney in L.A. County claiming violation of his constitutional rights, the U.S. Supreme Court unanimously reversed lower courts and ordered Goldstein’s case dismissed. The Court ruled that prosecutors have absolute immunity from suits for money damages. In spite of all his years in prison, Goldstein was not able to sue the D.A.. He was, however, ultimately successful in settling out of court with the municipality.

The last example I will offer is the case of Hui v Castenada. This is one you probably will not read about in the law books. Francisco Castenada, a legal Salvadoran immigrant was detained in 2005 by U.S. immigration officials for possession of methamphetamines. While he was in custody, he started having health problems. He sought treatment for a lesion on his penis that was growing and frequently bleeding. Castenada repeatedly requested treatment as the lesion was becoming more painful. A lump also developed in Castenada’s groin.

A U.S. public health service physician’s assistant and 3 specialists advocated for Castenada saying he needed a biopsy to determine whether he had cancer. Corrections officials refused the procedure saying it was “elective”. Castenada was given Ibuprofen and an additional ration of boxer shorts.

For another year, his symptoms worsened. His lesion enlarged, emitted a foul odor and leaked pus. Castenada had difficulty urinating. When correction officials finally gave in and allowed a biopsy, doctors diagnosed squamous cell carcinoma of the penis. Castenada subsequently had his penis amputated leaving a two centimeter stump. But that was not the really bad part. His cancer had already metastized all over his body. He died a year after his diagnosis.

Before he died, Castenada brought suit against the Public Health Service, arguing that deliberate indifference to the medical needs of a prisoner was cruel and unusual punishment under the 8th amendment. Although lower courts had allowed this case to go forward, the Supreme Court ordered that the case be dismissed saying Public Health Service officers have absolute immunity too.

The heartlessness of this decision is mindboggling but it is quite consistent with the broader trend toward expansion of immunity for all government officials.

I cite these cases not just to point to the worst moments in Court history. The more recent ones reflect trends. Chemerinsky does a great job in fleshing out development of trends in the Court’s jurisprudence.

Earlier in this piece, I wrote that Chemerinsky ‘s analysis was ultimately unsatisfying. I wrote that because, even with the good reform ideas he proposes, we are still stuck with the same court. I have not even touched on some of their other awful decisions such as voting rights and Citizens United. I do honestly feel a degree of hopelessness about the Court because there are four justices who appear frozen in their right wing ideology. It is very rare for them to deviate from the extreme right agenda. I do not think there is anything that can be done about that. They remain until they leave the Court and are replaced by some future President.

I would concur with the reform ideas proposed by Chemerinsky. These include: changing the confirmation process and 18 year term limits for justices. The confirmation process has devolved into a farce of dishonesty. Chemerinsky mentions Justice Roberts testimony before the Senate Judiciary Committee.

“Judges are like umpires. Umpires don’t make the rules; they apply them. The role of the umpire and a judge is critical. They make sure everybody plays by the rules but it is a limited role. Nobody ever went to a ballgame to see an umpire.”

Please. Roberts was not the only one to mislead ( it was the same for Sotomayor and Kagan) but the transparent falsity of those remarks are so evident. It would be refreshing if we had a process where prospective justices could be honest and forthright about their true views. We have institutionalized a form of dishonesty.

I did want to say that Chemerinsky writes very well. Unlike so many books about the law, the book is readable and clear. Non-lawyers could read it and enjoy it. That is rare because so many lawyers are verbose, boring, and they use mystifying language when they could be simple and direct.

The book is learned and wise. I also think it is courageous. Chemerinsky appears before the Court and he really is calling them out. It is always refreshing to see a writer lay it on the line, speak the truth and take no prisoners. Chemerinsky deserves credit for taking on a sacred cow that has needed debunking. I think his book is in the best tradition of respect for the rule of law.