The controversy over this book shouldn't be that it calls for major reforms to the Supreme Court. Rather, the controversy should be why it took untilThe controversy over this book shouldn't be that it calls for major reforms to the Supreme Court. Rather, the controversy should be why it took until 2014 for a major legal scholar to realize this was the case.
The answer is that the ascendent generation of legal scholars lived in the one period where the Court was an agent for progressivism. Indeed, I imagine most of those scholars were, like Chemerinsky states himself, inspired into the profession by those cases in the first place. This so drastically biased the view of these scholars, and their waiting for some messiah to return that era, that they were blind to the obvious truth: the Court has, as a rule, been a reactionary force in American politics.
There is virtually no other country in the world that we would consider "free" where an unelected, lifetime body of sages can strike down acts of the democratically elected legislature. There is one country that does have such an arrangement that I can think of, however: Iran.
Chemerinsky fails to point out—until his discussion of the merits of term limits—that the times when the Court was relatively progressive or moderate were times when the people were already way ahead of them. The "switch in time that saved the nine" in the 30s was one such example. Chemerinsky claims that the Civil Rights Act of 1964 was more or less enabled by the Brown v. Board of Education decision, but, in my opinion, the only way that's correct is that without it, the Congress could have expected any civil rights laws it might enact to be struck down. He claims the political process would have taken much longer—just a few sentences after pointing out that the Court's early jurisprudence on the 14th amendment set back civil rights for decades. If Congress had been able to act according to the plain meaning of the 14th amendment, it might have done so. Who can say?
There is a contemporary example. Gay marriage is a hybrid of judicial decisions, popular referenda, and acts of legislatures. Even though at the moment, it appears that the existing cases require gay marriage to be legal, it's hard to believe we would have gotten there if so many states and the political process hadn't moved too—indeed, a key step was "civil unions" that were widely enacted by legislatures. From there, it was an easier argument to say there's no sense in discriminating between group A and group B. And this change has come about rather rapidly as these things go.
Finally, judicial review gives the legislatures and Congress the ability to punt on controversial laws and take political credit for feeding red meat to their base without owning the consequences of actual enactment, especially in the case of very controversial laws. This fact gets just a few sentences of consideration by Chemerinsky.
Congress is extremely unpopular and it is unlikely that Americans would support an amendment giving them the authority to override the Supreme Court, say, on a two-thirds vote with concurrence from the President (no veto override). But there ought to be some further check and balance on the decisions that don't involve the political pressure of removal or term-limits like Chemerinksy suggests.
One much more practical way to do this is to demand from Presidential candidates that they appoint justices who will give greater deference to Congress than they do.
Chemerinsky's lead suggestion is to re-implement the "merit-based" judge selection implemented by President Carter. This is a suggestion only a law professor could love. In a time when political procedural obstruction is at its maximum, what possible benefit could there be from another veto point in a process? Would Chief Justice Earl Warren survive such a panel today? After all, he was not a Harvard educated appeals court judge. Chemerinskiy deplores the homogeneity of the Court's composition while suggesting a process that would only serve to make it even more the same.
I find it troubling how much Chemerinksy's consideration of ending judicial review is a straw man. In his example, there would be no vindication for any rights in court if judicial review pursuant to Marbury v. Madison were ended. In an extreme case, yes. He could, but does not, distinguish between several potential layers of judicial restraint that are possible. His example includes full deference to acts of the executive and the legislature. Why does this need to be the case?
Under English law, where Parliament is supreme, the Crown cannot act without legal authority and a court is empowered by mandamus to prevent such acts, just as it is in the United States. Even under such a system, there are judicial checks on executive action, and they aren't limited to violations of the English constitution just like American injunctions can issue from courts for violations of non-constitutional rights as well.
But what an English court cannot do is declare an Act of Parliament down. It can interpret it and if can reconcile conflicts. In Israel, there are "basic laws" which are presumed to trump other enactments, but the Knesset has the authority to amend the Basic laws, but political checks prevent that from happening with any regularity at all.
I wouldn't even go so far as to suggest that US courts cannot declare laws unconstitutional, but I believe that ideal justices would limit the holdings to each case and give a duly authorized act of Congress rational basis review in all cases. In a more ideal system, I would suggest that the American equivalent of "Parliament"—often misunderstood to just be Congress—but in fact, is the President and Congress (c.f. "King in Parliament") as the other two branches should have an additional check on Supreme Court decisions that touch on the Constitution.
Chemerinsky, after spending the beginning part of the book showing how terribly the Court has done in what he sees as its mission of protecting those that the political process won't protect, and citing examples where the political process has protected them (like the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Bipartisan Campaign Finance Reform Act of 2002) somehow just decides that all of this will be worse if there is no further check on the Courts. I find his argument to be very much not compelling.
The political process does better than he gives it credit for, and the Court is as bad as he says. The solution, then, isn't to simply let the executive and legislative branches run wild, but it isn't enough to just screen justices through a merit panel and then let them do anything they want.
But all of this assumes the truth of a very problematic assertion: that the judicial process is, in fact, outside of the "political process." Is this true? Does the judicial system exist on separate plane? I simply don't believe that. Not after over 10 years of practicing law. Granted, Chemerinsky gives a few examples of where the judicial process has worked where the "political" process has failed—but this implies it wasn't the "political process" that put those judges on the Court in the first place. Indeed, part of Chemerinsky's own argument for term limits for judges is that they be a product of their time, not 40 years prior. If we are to have judges and justices infused with the ideologies of the time, the process becomes even more political.
All of this, of course, is put in sharp focus by the fact that political ideology, not whatever abstract theory of Constitutional interpretation, a judge subscribes to is the number one most reliable predictor of how he or she will vote. Not political? And I haven't even mentioned Bush v. Gore yet.
Any political process is always going to disfavor certain people. Part of the genius of our Constitution was engineering some checks on this. But acting as if the Constitution was made perfect (which Chemerinsky does not) means not extending the principle of checks in favor of leaving one branch unchecked due to a ruling that branch itself made that the Constitution's own authors did not foresee.
For every Brown v. Board, I can show you a Civil Rights Act of 1964. For every Roe v. Wade, there is a Social Security Act. We may dislike Congress, but at least they have to answer to us.
I've already mentioned why merit-based selection panels are flawed and will only exacerbate the very flaws Chemerinsky complains of, but what about term limits? What has the experience been in putting term limits in place in other branches?
Well, it hasn't much harmed the Presidency, but with the exception of FDR, no President has ever served more than two terms to begin with. It is rather less common for a party to win a third term in a row, though it happens. (Just once since World War II -- Bush I after Reagan).
But in state legislatures, term limits on legislators has simply replaced the party machinery as the organization in charge and greatly deprived legislators of independence. They look to see what they will be doing next. This won't be any different for a 14-year Supreme Court term. We will simply see a series of clones put in place by the political process that places them.
If we're going to open the Constitution to solve this matter instead of just change the existing political process to require justices to give huge deference to Acts of Congress (if not executive powers), then why not simply give the Congress and President the ability to reverse the judgment of the Supreme Court?
If I was reviewing the idea in this book, it would get 5 stars.
As a book, there are few problems. First, just stylistically, I feel like I'm being lecIf I was reviewing the idea in this book, it would get 5 stars.
As a book, there are few problems. First, just stylistically, I feel like I'm being lectured by a precocious toddler about how to do things. The tone is professorial, to put it charitably.
Second, there is a bit of incongruity between a system explaining that you need to engage in scientific testing in almost Popperian fashion on the one hand and a series of case studies on the other. Case studies are, of course, the currency of business school. But they're about as scientific as the Psychic Hotline. And this is because sometimes science can only tell us that a system is complex beyond our divination.
Third, when I don't feel like I'm being lectured, I feel like I'm being sold. This book seems like a portfolio of the author's work with a few sexy add ins like Facebook for effect.
I'm not surprised that most of the reviews here are Goodreads are glowing. Most of the time, a brilliant idea is enough. The idea of taking an idea and turning it into something is exciting. But really, it is the execution that matters. That's really what the book is saying: it's saying, screw your original brilliant idea. Take it and evolve it! And do that using facts!
I saw Ries's interview with Gavin Newsom totally by accident. I was glad to see him talking about some of the challenges entrepreneurs face aren't solved by the creation of new tax loopholes. But his delivery only confirmed my sense from the book: a lot of people are going to be turned off by his baby face matched with his know-it-all tone. This is too bad, because folks shouldn't dismiss these ideas.
I do question whether this is something that can apply as universally as the author claims. The majority of examples in the book are web services that run in the cloud. They don't depend on the rainfall in Sacramento affecting the price of soy in six months affecting the price of an item on my menu. Some businesses can't adjust on the fly without significant destruction.
Now, with all those caveats, I will have to admit that I will be (perhaps more humbly) applying some of the ideas I found in this book....more