Three Supreme Court "Failures" and a Story of Supreme Court Success

INTRODUCTION"[T]he Supreme Court is not the institution that I once revered," writes Erwin Chemerinsky in The Case Against the Supreme Court-a provocative, important work that also happens to be a great read.1 Chemerinsky's claim is that the Supreme Court ought to be protecting vulnerable minorities from repressive majorities, but it has not done so.2 "The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments," he argues.3 This is Chemerinsky's case against the Supreme Court, and it is a sweeping indictment.Of the cases Chemerinsky cites to prove his point, three stand out as particularly strong examples of the Supreme Court's failure to protect: Plessy v. Ferguson,4 Buck v. Bell,5 and Korematsu v. United States. 6 Plessy is the 1896 decision that upheld 'separate but equal' racial classifications.7 Buck is the 1927 decision that upheld involuntary sterilization of the hereditarily "feebleminded."8 And Korematsu is the 1944 decision that upheld the removal of Japanese Americans from their homes during World War II.9 All three make the short list of most maligned cases in Supreme Court history, cases uniformly condemned as moral failures, or at least instances in which the Court let us down.10 Indeed, Plessy and Korematsu are considered so odious that they have earned the dubious distinction of "anticanon,"11 and Buck is considered so grossly misguided that Chemerinsky chose it as the opening vignette of his book.12 By Chemerinsky's measure, all three are compelling examples of Supreme Court failures-cases in which the Court should have protected vulnerable minorities, but failed to do so.Considered in historical context, however, a dramatically different impression of these cases, and the Supreme Court that decided them, comes into view. In two of the three cases-Plessy and Buck-the Court's decision reflected the progressive view at the time, and in the third-Korematsu-the historical context was strong enough to draw the support of Justices Douglas and Black, two of the Court's most staunch civil liberties defenders. In all three cases, reconstructing the historical context in which the Justices were operating leads to an important insight: it would have been wildly hubristic, to the point of being almost unfathomable, for the Supreme Court in any of these cases to have ruled the other way.Plessy, Buck, and Korematsu are worthy as case studies not because they show how the Supreme Court has failed us, but rather because they show how historical context can constrain the Justices' proclivity to protect. The Justices do not interpret the Constitution in a vacuum, let alone in a time capsule with the sensibilities of future years. They decide cases in a particular historical moment, and as such, are subject to the panoply of attitudes, assumptions-even prejudices-that define that moment in time.13 When the paradigm in which the Justices operate is racist, the Justices are likely to be racist. And when it is awash with support for civil liberties, there is a good chance the Justices will be too. What was true fifty years ago still holds true today: "The more widely held the values in society, the more likely the Supreme Court will hold them."14In prior work, I have endeavored to make this point by examining cases in which the Supreme Court ostensibly played the role of the countermajoritarian hero, protector of minorities from oppressive majority rule. On such highly controversial issues as capital punishment, abortion, and school prayer, I have historically situated the Court's protection to show that it was a response to, and reflection of, larger sociopolitical change.15 Here I turn my attention from the Court-as-hero to the Court-as-failure with the aim of showing that the flip side is also true-just as extralegal context can inspire the Supreme Court to protect, it can also limit its inclination to do so. Culture can both empower and constrain,16 and that is a problem for The Case Against the Supreme Court. …