April 21, 2017Closing the Courthouse Door, Erwin Chemerinsky, Federal CourtsWhining About Article III
The latest tract by Erwin Chemerinsky, liberal law professor and dean of the University of California at Irvine School of Law, is depressingly familiar. Like his Enhancing Government: Federalism for the 21st Century
(2008), The Conservative Assault on the Constitution
(2011), and The Case Against the Supreme Court
(2014), his new book is a diatribe masquerading as legal scholarship.
The usual villains—conservative Supreme Court justices, malevolent government officials, rapacious corporations, racist police officers—are pitted against the wrongly accused, helpless consumers, and oppressed victims of discrimination.
Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable
presents one-sided vignettes drawn from actual cases, with factual nuances omitted to achieve the desired degree of caricature. With his straw men thus erected, Chemerinsky proceeds to tear them down, all the while claiming to expose the treachery of the evil-doers du jour. According to him, the only things standing between innocent citizens and despotism are Progressive federal judges and the protections of the living Constitution they enforce.
None of these grievances can fairly be blamed on “conservative justices.” The fact is that the various Supreme Court decisions Chemerinsky complains about have only one thing in common: the side he was rooting for did not prevail. In his liberal mind, that means that the applicable law is wrong and should be changed to open the courthouse doors—some would say floodgates—to all comers. This is nothing but results-oriented sophistry.
In the book’s final few pages, the author airily brushes aside the countervailing considerations, which he summarizes under the headings “Too Much Power in the Federal Courts?” and “Is It All a Quest for Liberal Results?” Not surprisingly, the answer to both questions is a passionate no.
Three years ago, Chemerinsky revealingly lamented that he hoped his then-latest book would not be perceived as a “liberal’s whining that the Court’s decisions have not been liberal enough.” That about sums up his point of view, though. Closing the Courthouse Door amounts to an extended whine about Article III.