A Supreme Court That Has Gone Wrong


These decisions caused an uproar among conservatives, and Richard Nixon promised that if elected he would appoint justices who favored law and order and the police rather than the criminals. Nixon got to name four men to the court — Burger, William Rehnquist, Harry Blackmun and Lewis Powell — who, together with Byron White, a Kennedy appointee who was conservative on everything except racial discrimination, formed the majority that, while it never overturned any of the Warren court’s major decisions, began hollowing them out. With the appointments of Reagan, the Bushes and Trump, that process has continued unabated.

Following the death of George Floyd in May 2020, a great public outcry arose against police brutality, especially involving people of color, and demands that police cease using chokeholds, stopping Black men for no seeming reason and shooting dozens of people of color each year. While well known within the Black community, the extent of this type of behavior shocked many white people, leading them to join protests around the country.

What most people do not know is the extent to which this behavior has been condoned by the judicial system, and here Chemerinsky presents a damning indictment of the Supreme Court. In case after case, the nation’s highest tribunal has found that police actions, even when clearly in violation of constitutional prohibitions, are acceptable. The decisions have not only prevented citizens from getting injunctions against future use of such practices as chokeholds, they have also made it almost impossible for those who have been the victims of police brutality to win civil suits seeking compensation. As Chemerinsky declares, the court’s record “from 1986 through the present and likely for years to come, can easily be summarized: ‘The police almost always win.’”

Although Chemerinsky builds his argument case by case, this is not a dusty accounting where first the court did this, then it did that. Aside from the fact that he writes well, Chemerinsky, the dean of the law school at the University of California, Berkeley, is also an experienced advocate, having appeared before the court on many occasions, and also having served as a consultant to those police forces who either by choice or necessity have tried to overhaul their practices. He bolsters his argument with examples from his own experiences, and his telling of the cases always starts with the people involved. Some have been stopped, beaten up and hauled into jail for no other reason than that they were Black and in the wrong place at the wrong time.

Chemerinsky is doubtful that with the current makeup of the court any meaningful reform of police practices will result from judicial action. But while the justices, who willfully ignore the racial implications of their cases, rule that police forces can get away with almost anything, their decisions are not binding should Congress or state legislatures, or even municipal governments, enact rules governing police misbehavior. A chokehold or a warrantless search may not, in the eyes of conservative justices, violate the Constitution, but they have never ruled that the Constitution requires such practices. Chemerinsky details a number of ways state and local governments can and should reform police procedures without having to go to court.