Unpublished Papers

More Harm Than Good? Erwin Chemerinsky's Case Against the Supreme Court

ofer raban, university of oregon school of law


Erwin Chemerinsky’s The Case Against the Supreme Court is a about an alleged institutional failure: the failure of the U.S. Supreme Court to protect vulnerable groups from repressive electoral majorities, from powerful interests, and from official abuses of power. The indictment consists of a long list of cases covering most of American history. It includes the failure to mitigate the injustices of slavery; the failure to extend equality to African Americans after the Civil War; the failure to protect free speech at times of war or national crisis; the failure to protect employees and consumers from corporate lawbreakers; and the failure to punish government officials guilty of grave abuses of power. This long list of cases leads Chemerinsky to ask whether, at the end of the day, the U.S. Supreme Court has done more harm than good throughout American history. This review examines this provocative question and the record adduced to support it. It argues that Chemerinsky fails to make a strong case for the “more harm than good” claim, because he fails to focus on constitutional invalidations—the only sort of cases that could support such a claim. Like the book, the review concludes with a discussion of Chemerinsky’s defense of judicial review, and his long and convincing list of suggested Supreme Court reforms.

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