I’m currently reading Erwin Chemerinsky’s new book, The Case Against the Supreme Court. Chemerinsky is a very persuasive advocate. His writing is clear and accessible, his tone moderate and open. The portrait he paints of the Court is pretty bleak. “The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments,” he writes. I’m not going to say that Chemerinsky fully makes his case, but he has a pretty good go at it. For anyone who begins the book with visions of the Supreme Court as the defender of the dispossessed and disempowered, the book offers a bracing ride. The Court that emerges from this book is beaten and battered, a diminished institution whose failures, in Chemerinsky’s final estimate, far outweigh its achievements.
Although The Case Against the Supreme Court is particularly notable in that it is the work of an unabashed admirer of the Court who has become deeply disillusioned, Chemerinsky’s basic critique of the Court is very much in line with the zeitgeist today. A critical posture toward the Court has become standard fare—increasingly so, I think. We have also seen a general chastening of expectations of what the Court can and should do. Public opinion of the Court has steadily declined in recent decades. Scathing attacks on the Court, while always a part of our public discourse, are now common. While much of this can be explained by liberal frustration with the conservative tendencies of the Rehnquist and Roberts Courts, it cannot be reduced to this. Some of the most condemnatory attacks on the Court have come from the political right. Also, a growing number of scholars have gone down the path that Chemerinsky recently discovered, questioning not only the current Court but the institution itself. Some have urged us to consider whether the costs of judicial review outweigh the benefits; others have suggested that even the most iconic of Court achievements, such as Brown v. Board of Education, gave the nation far less than we might have thought. The Supreme Court has come in for some rough sailing of late.
So why, then, is there so much public fascination—a fascination that sometimes approaches idolatry—with the Supreme Court and the people who serve on it? This curious love-hate juxtaposition came to my mind, because while I was reading Chemerinsky’s diatribe against the Court I came across an article last week in the Washington Post on the social media industry that has grown up around the Court. We have a fantasy league for the Supreme Court. People are making animated re-creations of Court arguments. Comedian John Oliver’s oral argument skit with animals was a YouTube hit. The Justices have done their part to help fuel the Court-watching scene. They are out and about like never before, attracting impressive audiences and regular media attention wherever they go. Semi-revelatory memoirs seem to be the new norm for justices. Time just ran an article in its “Entertainment: Celebrities” section titled “Why People Love Reading About Supreme Court Justices’ Favorite Movies.”
What’s going on here? I think much of this can be attributed to various broader developments in American society. On the one hand, public fascination is fueled by the rise of social media, which allows networks of followers to form and expand, and by the fact that the Court has become a part of the broader celebrity-obsessed culture in which we live. On the other hand, disillusionment with the Court is fueled by growing ideological polarization coupled with a general decline in faith in institutions across American society.
Even as we think less and less of the Court, we seem to be thinking more and more about the Court.