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Chemerinsky and the Supreme Court

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UC Irvine Law Dean Erwin Chemerinsky's new book attacking the Supreme Court has caused Volokh Conspirator Orin Kerr to "wonder[] if he was just criticizing the Supreme Court for not agreeing with his policy preferences."

Orin has this Q-and-A with Dean Chemerinsky in which Chemerinsky attempts to answer that question "no," but even the left-leaning commenters on the post mostly agree that he ends up demonstrating that the answer is "yes."
In his first answer, Dean Chemerinsky lists a bunch of old decisions that he says everyone would agree were wrongly decided.  He is wrong about the child labor case of Hammer v. Dagenhart, BTW.  There are people who defend that decision and want to see it reinstated.  I think they are fruit loops, but they do exist.

But then he says, "Thus, before ever getting to the contemporary cases, I think that there is a strong case against the Supreme Court that liberals and conservatives would agree to."  That conclusion does not at all follow from the premise.  The fact that there have been a number of bad decisions in a long history does not equal a condemnation of the institution.  It has done a great deal of good also, and overall more good than harm.

The Framers of our Constitution were right to create the Supreme Court, and the understanding at the time that it would have the authority of judicial review of statutes was also correct.  The error was life tenure, and that is why most state constitutions don't have it.  There needs to be a way to remove judicial autocrats such as Roger Taney or William Douglas.  It shouldn't be easy, but it should be possible, and impeachment isn't it.

4 Comments

You say, "The error was life tenure, and that is why most state constitutions don't have it." Why is it an error? I'm not saying You are right or wrong; I am saying I do not understand.

You also say, "There needs to be a way to remove judicial autocrats such as Roger Taney or William Douglas. It shouldn't be easy, but it should be possible, and impeachment isn't it." Since Supreme Court Justices may hold Their position only on "good behavior", why is impeachment insufficient, especially in light of the fact the definition of "good behavior" is generally left up to the congress? I'm not saying You are right or wrong; I am saying I do not understand.

The Antifederalist writer "Brutus" nailed it even before the Constitution was ratified when he said life tenure, judicial review, and democracy could not all three coexist. Life tenure was fine in Britain where Parliament could overrule any judicial decision by statute, but not in the United States where the written Constitution had priority over statutes and its interpretation was up to the courts in the end.

Whether the "high crimes and misdemeanors" limitation of Article II also applies to Article III judges remains unsettled. Congress acts like it does.

Impeachment of judges for outrageous decisions was tried in the Jefferson Administration and failed. It hasn't been a serious threat since. Roger Taney wasn't worried about impeachment when he wrote Dred Scott.

Theory aside, the 2/3 requirement for removal from office prevents impeachment from being a serious check on judicial power. Few decisions will be so uniformly recognized as an outrage that a judge can't get 34 Senators to vote for acquittal.

In my opinion the optimum balance, or perhaps the least bad alternative, is the periodic yes/no on the ballot that we have for appellate judges in California. We've only voted judges out once, but that was exactly when it was most correct to do so.

Hypothetically speaking if the US Constitution was amended to allow for periodic retention votes on federal judges presumably it would be the Senate voting - wouldn't this just lead to judges being removed solely on the party in the majority when said judge came up for retention? I don't see that as a very good alternative.

In my proposal, and the current California system, the people do the voting.

I would certainly never propose periodic confirmation by the Senate.

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