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Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016).

In The Case Against the Supreme Court, Erwin Chemerinsky explains why he is disappointed in the Supreme Court and its failure to function as it is designed—as a countermajoritarian check on society’s worst majoritarian impulses, protecting individual rights from popular encroachment and offering a venue to minorities shut out of success in the political process. Commenting on the book, Corinna Lain argues that the source of Chemerinsky’s disappointment is his expectation that this is the Court’s function. And, she argues, the source of that expectation is the Supreme Court itself. On Lain’s telling, every case in which the Court is perceived to have “failed” in its countermajoritarian role actually reflects the Court’s success in furthering the story (I might label it a “myth”) of what it does, what it should be, and what many scholars (I would put myself in this group) hope and expect it to be.

Lain focuses on three cases routinely disparaged as judicial failures–Plessy v. Ferguson (upholding segregated railroad cars and, by extension, Jim Crow laws), Buck v. Bell (upholding forced sterilization programs), and Korematsu v. United States (upholding the exclusion of people of Japanese ancestry from the West Coast). All are uniformly recognized today as among the most grievous examples of the Court failing to protect individual rights and vulnerable minorities.

But Lain argues that the historical and cultural contexts in which the Justices operated explain, even if they do not normatively justify, the outcomes in each case. Plessy and Buck reflected what, at the time, were widely popular, accepted, and even progressive views—Booker T. Washington and other prominent African-American leaders supported segregation, Helen Keller and Margaret Sanger supported eugenics (the scientific theory underlying forced sterilization). Korematsu followed a genuinely earth-shaking event and was decided in a period of total war, over which the Court was not likely to challenge the public and the war-making branches. In fact, Lain argues, a closer look at Korematsu’s internal dynamics shows the Court doing more than we might expect–it refused to lend judicial imprimatur to internment, performing “judicial backflips” to rule only on the constitutionality of exclusion and not pass on the validity of internment). And in Ex parte Endo, Korematsu’s companion case, the Court ordered the government to release those whose loyalty had been established. Moreover, none of the three “failures” was obviously incorrect on the law as it stood at the time—the problem with these cases is not doctrinal, but that each rests on “value judgments that we strongly reject today.”

Cultural and historical context in turn affects how we should understand the judicial role. The Justices are part of the broader society and share many of its widely held ideas, which the Court’s judgments inevitably reflect. The Court’s “failures” are not necessarily decisions in which the Justices recognized a wrong but refused or were unable to stop it out of fear—the concerns that Article III protections of life tenure and guaranteed salary are designed to alleviate. Rather, the Justices shared the prevailing legal, political, and social views informing the challenged actions and simply were not going to depart from those views. That prevailing culture sets “limits on the plausible constitutional outcomes that a majority of the Justices might find agreeable,” simply because the Justices, even subconsciously, are immersed in that culture. It is unfair, Lain insists, to expect them to depart so far from societal norms that they themselves share.

Lain generalizes this argument to judicial review more broadly. In particular, it explains why the Court has most vigorously protected minorities from majoritarian overreach at the state and local, rather than national, levels. She cites the invalidation of segregated education in Brown and the recognition of procedural protections for criminal defendants in Gideon v. Wainright; we could add free speech, where the Court protected civil rights protesters and their supporters from local restrictions, but not communists or anarchists from federal prosecution. As Lain argues, when “the problem is not a pocket of oppression but rather society itself, the same values that permeate the rest of the population are highly likely to color the Justices’ views too. And that limits what the Supreme Court can realistically do.”

Yet Chemerinsky and others remain disappointed that the Court has not lived up to some ideal as a countermajoritarian protector of politically powerless minorities. Importantly, however, they can be disappointed in the Court only if they were expecting it to do better. And given Plessy, Buck, and Korematsu (to name only three), we might wonder where that expectation comes from. According to Lain, it is because the Court has convincingly established this as its role, even while not always performing it (at least not in the way many would like). Lain argues that this “role is not inherent in the Court’s composition; it did not spring forth from the Constitution fully formed. It did not have to be, but it is, and it is because the Court created it.”

Beginning with Footnote 4 of Carolene Products, the Court has sprinkled decisions with rhetorical flourishes about its standing as the bulwark protecting individuals and the Bill of Rights against the tide of popular passions, and about conducting more searching judicial inquiries into laws that disadvantage discrete and insular minorities or that touch on specific constitutional prohibitions. The Court even did this in Korematsu itself, dropping what Lain calls an “awkwardly placed” declaration that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” before pronouncing that suspect legal restriction constitutionally valid.

And this idea has stuck. It does not matter that the Court often has rejected the rights claim amid the rhetoric. Nor does it matter that even the Warren Court, held up as the one true period of countermajoritarianism, often acted in step with, rather than against, larger socio-political changes. Nor does it matter that some of the most rights-protective Justices have produced the greatest failures—Justice Black wrote, and Justice Douglas joined, the majority in Korematsu; Justice Holmes wrote Buck nearly a decade after planting the seeds for vigorous judicial protection of free speech.

At the same time, this rhetorical creation has some practical benefits. First, the Court’s self-conception as countermajoritarian defender frees it to actually play that role, at least at times. Broad public acceptance of the Court’s rhetoric allows the public to accept at least some of the decisions in which the Court flies in the face of majoritarian sentiment. While we do not have a full understanding of when the Court will choose to play the countermajoritarian role and when it will not, Lain argues the Court can do so even occasionally only because it has put itself in this rhetorical position. Second, the Court’s promotion of this ideal influences those who argue before and write about the Court (Chemerinsky regularly does both). It prompts them to continue bringing their arguments to the Court, continue talking about the Court, and, most importantly, continue responding to their disappointments by refining their arguments and critiques until they find the ones that work, both with the Court and with the public. As Lain summarizes the point, “the Justices cannot transcend the culture in which they live, but the expectations the Court has created can do something better—they can set in motion the very forces that can, over time, change culture itself.”

This article continues two significant recurring themes of Lain’s larger body of scholarly work—the role of cultural and historical context in constitutional decisionmaking and the historical inaccuracy of the Court’s countermajoritarianism narrative (even in those cases in which it “succeeds” in protecting individual rights). It then adds a new piece to that puzzle—the self-reinforcing influence of the Court’s rhetoric on the Court and on our expectations. Regardless of what the Court actually does or why, the expectations themselves tell “a separate, and decidedly consequential, story of Supreme Court success.”

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Cite as: Howard M. Wasserman, The Irrepressible Myth of SCOTUS, JOTWELL (June 1, 2016) (reviewing Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016)),