Frederick Schauer

Reforming the Supreme Court

New Rambler


Erwin Chemerinsky does not like the Supreme Court. And not only does he, as a selfavowed liberal, not like the Supreme Court under the relatively recent Chief Justice-ships of John Roberts, William Rehnquist, and Warren Burger, but he is also not thrilled even with the Supreme Court in the Earl Warren era. And the Court before Warren fares as badly or worse in his eyes as does the Court after Warren. Chemerinsky, who is the dean of the law school at the University of California at Irvine, is a prolific author on various topics within constitutional law, and has also been a frequent advocate before the Supreme Court and other courts. These experiences inform his views, and indeed the book has a flavor that seems partly autobiographical and partly confessional. Although he previously admired the Supreme Court because it often (and certainly more often than the other branches of government) upheld the rights of the disempowered against the forces of government, he has now come to believe that even in its best periods the Supreme Court did far too little to help those who needed it most, and that in its worst periods (one of which is, in his view, more or less now) its efforts have been affirmatively detrimental. But for Chemerinsky the solution to the problem of the Supreme Court is not to give it less power, but rather to reform the way in which the Justices are selected and in which cases are decided. And although his proposals for reform come after the rather lengthy windup that dominates the early part of the book, it is the proposals for reform that are most interesting, and which will be my focus here.


Frederick Schauer, Reforming the Supreme Court (reviewing Erwin Chemerinsky, The Case Against the Supreme Court) New Rambler (2015).

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