Is the Supreme Court Failing at Its Job, or Are We Failing at Ours
Sanford Levinson calls for a new constitutional convention in Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). This review explains how Levinson overstates the Constitution's defects and understates the risks of submitting it to a constitutional convention for revision. It exposes the hidden biases in Levinson's analysis and defends the counter-majoritarian aspects of the Constitution that Levinson criticizes. Chemerinsky is one of the leading constitutional scholars of our time and a frequent advocate before the U.S. Supreme Court. If he thinks there is a case to be made against the Court, we should all take it very seriously indeed. Chemerinsky's thesis may be stated in a few sentences. The primary role of the Supreme Court, in his view, is to "protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities." Canvassing the Court's performance over two centuries, he concludes, first, that it has failed dismally at those tasks. Nevertheless, he reaches two additional conclusions: he believes that we can and should expect the Court to do better, and he outlines reforms that might help it do so. Chemerinsky makes a strong case that the Court has historically failed to live up to its role. His primary historical examples-from Dred Scott v. Sanford and Plessy v. Ferguson to Buck v. Bell and Korematsu v. U.S.-are widely thought of as reprehensible...In the pages that follow, constitutional scholars address these questions.