Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges by Eric J. Segall (Hardcover) (219 Pages)
The general public has trusted the Supreme Court as a whole much more than the other two branches of government. This trust has diminished in the last few years. Nonetheless, the public still as a whole believes justices of the Supreme Court are overall reliable.
Why? Well, the general idea is that justices apply the law, and are not “politicians in robes.” Politicians are dubious characters, who even if they are not crooked, are partisan actors and regularly cannot be trusted. If politicians do explain themselves, they often are lying.
Prof. Eric Segall, who wrote this book in the middle of the Obama years (2012), has been a law professor for decades. He teaches Supreme Court cases and back in the day even worked in the federal Justice Department dealing with them. And, he wants to flag some myths.
Prof. Segall, and he surely still thinks this, argues that Supreme Court justices do not act like how normal judges act. A normal court applies the law, follows precedent, and is checked from above if they slip up. The Supreme Court ultimately applies its own values, regularly overrules its own precedent, and is the SUPREME Court. Who checks them?
This book is specifically concerned with how the Supreme Court decides constitutional issues outside of criminal justice. Criminal justice at least is in the wheelhouse of a judge. What ability do justices have to settle broad policy issues like abortion or affirmative action?
Prof. Segall argues justices should only overturn democratically passed laws if the Constitution clearly compels them to do so. This rarely is the case. In other cases, democracy should rule.
Prof. Segall argues that the Supreme Court does not operate like a “court” should act. He finds this a problem. It is even worse that the general public has a fantasy view of how the Supreme Court operates. This book both informs (what really happens) and advocates (what should).
Should I Read It?
The author is a law professor, but the book is not intended merely to be read by law students.
The book deals with various legal subjects in a way that should be accessible to the general public. A basic familiarity with the issues would be helpful, including judging his arguments. All the same, a well-read high school student should be able to read this book.
The book makes certain basic arguments and uses a few case studies (abortion, equal protection, guns, religious liberty, economic legislation) to make his case. If you do not want a book with a sizable amount of history and case analysis, only some chapters are for you.
This is done in an approachable book of around two hundred pages. It is a good basic introduction to his point of view, while being evenhanded since he finds both constitutional cases on abortion (pro-choice) and guns (individual ownership) mistaken.
I personally think the book is incomplete. Perhaps, this is partially a matter of space constraints, since his second book is about the same length. Nonetheless, for instance, a chapter about how state courts operate or why some believe more discretion is warranted would have been helpful. Also, criminal justice (not covered) vs. other issues is a dubious division.
Also, it is hard to fully examine arguments in major areas in the space provided. I would push back on some of his conclusions that such and such a case is obviously mere policy. The person without much knowledge on the history and cases there might be misled.
Nonetheless, I think his approach is challenging and provides an important point of view.
The Supreme Court decides constitutional decisions by using personal values.
It is not a true court and justices do not act like true judges. The Supreme Court claims otherwise and others allow this “supreme myth” to be readily accepted.
The Supreme Court denies the American people the ability to decide policy questions the Constitution leaves to elected branches.
Prof. Segall has noted that he is deeply impressed by now retired Judge Richard Posner, who is quoted to start this chapter: “If changing judges changes law, it is not clear what the law is.”
But, the Supreme Court regularly changes the law as personnel changes. A historical example involving the constitutionality of paper money is cited.
The Legal Tender Cases is a typical example of dubious Supreme Court constitutional analysis:
(1) Constitutional text and history is cited as clearly providing the answer, each side however finds conflicting “clarity.” There isn’t any.
(2) Justices assure us they are following law and precedent. They often are not.
(3) Changing constitutional law based on changing personnel means law itself is not supreme.
Justices are more a “veto council of elders” than principled judges.
Chapter 1: Supreme Mythology
A real judge faithfully interprets the legal texts (like the Constitution) based on a consistent and principled application of history and precedent.
“Real” judges honestly explain what they are doing. Judges are checked; subject to review. And, they decide things that are not so vague and open-ended to make judging (as compared to policy making) possible. Suffice to say, justices of the Supreme Court fail each test.
Justices ultimately decide cases that matter, putting aside easy matters, using political preferences, life experiences, religious/moral values, and other subjective beliefs. Not law.
The book is specifically concerned about constitutional law because statutory law decisions are more open to review by political branches. Constitutional decisions are final.
Prof. Segall grants for the sake of the book that justices have some special skills and rightful authority to decide matters of criminal procedure. Justices deciding social issues like abortion or guns is quite different.
[Note: I find the last thing a bit of a cheat. Criminal law involves a broad range of issues, many involving complex disputed social matters. What special expertise do a bunch of appellate judges have in many of these areas? Also, criminal policy regularly overlaps with social issues, including raising equal protection concerns. The line to me doesn’t really work.]
Chapter 2: Marbury v. Madison and the Birth of Judicial Review
Marbury v. Madison, the case that clearly established the power of judicial review, is discussed.
Prof. Segall basically sees this also as the birth of justices as deceitful policymakers, including a self-interested party writing the opinion. The opinion was largely “dicta” — not required to decide the case, but there to state policy. But, at least, it used judicial review narrowly.
Chapter 3: Racial Discrimination: Dred Scott, Plessy, and the Reconstruction Amendments
This chapter deals with antebellum slavery issues, particularly the infamous Dred Scott Case, as well as a few cases decided on race matters after the Civil War.
Dred Scott was bad constitutional law, but the real point was an attempt to find a way to settle a policy dispute. The Supreme Court’s first major applications of the Reconstruction Amendments, including Plessy (segregation) was also bad law and a lot of policy.
The Supreme Court interfered with the proper discretion of the people’s representatives to decide complicated policy issues, including overruling compromises balancing various interests.
Chapter 4: The Economy
The Constitution clearly was intended to give the federal government power to regulate the national economy and prevent state protectionist legislation. The exact line drawing here is complicated, the proper federalism balance is generally left to changing political majorities.
The Supreme Court over its history had varying answers, starting off pro-federal government, then more restrictive (using hazy lines), back to hands-off, and then (in recent years) somewhat more wary to accept federal power. These cases largely turned on the values of the justices.
Stating a basic theme of the book, these are hard policy questions with complicated legal nuances. If the Constitution does not clearly say otherwise, let the politicians handle them.
Chapter 5: Abortion
Abortion policy turns on personal moral judgments on issues of religion, women’s rights, when life begins, and state interests over potential life.
The author is strongly pro-choice but thinks these decisions basically are a matter of policy, not law. This is sort of his “see I’m consistent” chapter.
It is also a sort of “I told you so,” since Prof. Segall argues that the abortion rights ruling led to partisan political aftershocks that bluntly speaking bit liberals in the ass. It also led to even more value-laden judging, including justices with a more conservative view on abortion.
Roe v. Wade is not somehow a special example of “liberal judicial activism.” Regularly, both liberal and conservative justices go beyond what the constitutional text and history provides. Justices take power away from the public over a range of disputed policy issues that should be left to the state and federal governments to decide.
[Note: I would push back on some of his arguments, including how important Roe itself was to the political developments that came afterward. And, I think text, constitutional history, and generally speaking “law” was very well involved, not just values.]
Chapter 6: Guns
The Cult of the Constitution challenged the view that the Second Amendment clearly provides a strong individual right to a firearm.
Prof. Segall notes the many complicated aspects of the overall controversy. Does the Second Amendment protect personal use of firearms? If so, who is protected? What exactly does “keep and bear” and “arms” mean? What regulations are okay?
He thinks the Supreme Court blew it in D.C. v. Heller (individual right to bear arms protected). But, the basic problem for him is that the justices did not honestly apply law, but personal values. The problem is suggested by a 5-4 Court strongly disagreeing on what is a policy call.
Chapter 7: Affirmative Action
Prof. Segall defines affirmative action as the “use of racial, gender, or ethnic preferences by a public institution to determine who receives a government benefit.”
He argues affirmative action is a legitimate policy choice, especially given the history of discrimination in this country. The justices over the last fifty or so years had changing views on such questions, the judgments turning on personal value judgments.
Conservatives favor “originalism,” which appeals to original understandings of constitutional text as a means of restraining judicial power. Segall’s second book (Originalism As Faith) targets that. Originalism in his view is a form of gaslighting, pretending to restrain.
The top originalists on the Court (Scalia and Thomas) did not even discuss history in their opinions against affirmative action. This is particularly galling since history is on the side of affirmative action. Segall is … well, he is not a big fan of those two justices.
Chapter 8: Freedom of Religion
The First Amendment bars the establishment of religion while protecting free exercise. Just what that means is unclear though certain basic principles can be agreed upon.
The Supreme Court, however, has had a bunch of confusing, ever-changing, cases involving a range of minutiae involving such things as what sorts of public aid to religion is appropriate. The results usually could be determined by which justices were on the Court. Law? Not so much.
At the very least, the line drawing continually turned on debatable judgment calls that would be better left to the people themselves. Again, this involves both liberal and conservative decisions that applied some sort of legal rules. But, there was not much clarity for lower court judges.
Chapter 9: Policy Proposals
Prof. Segall proposes two basic reforms: the end of life tenure and limited judicial discretion.
Life tenure, especially with longer life spans and courts with much more power, is problematic. Other constitutional democracies do not have it.
Life tenure risks justices staying on past their ability to do their jobs. Also, it prevents a steady replacement process (such as every two years), justices retiring (or dying) haphazardly.
And, limited terms would allow more replacement to prevent justices from falling out of step with the values and needs of the day. Justice Thomas has been on the court for three decades.
Prof. Segall also would only allow justices to overrule policy judgments if there is clear (“irreconcilable variance” to quote Alexander Hamilton) constitutional demand. Pretty rare.
[Note: He thinks Brown v. Board of Education meets his test. Seems clear today, but at the time, it was quite controversial. And, the unanimous ruling was helped by a Supreme Court led by a liberal Republican and stocked with Roosevelt/Truman nominees. There were many judges at the time who could have ruled the other way.
He disputes Roe v. Wade, which was decided 7-2, and very arguably can meet his test. He also thinks same sex marriage is clearly protected. The Supreme Court decided that 5-4.]
Judicial review is still a good idea. It is important for the rule of law and limited government to have certain constitutional limits; separation of powers warrants courts having that role.
Chapter 10: Conclusion
Prof. Segall basically ends with his preferred Constitution as compared to the one the people have shown to support by the judges who their presidents and senators accept.
The Constitution would protect separation of powers with an independent judiciary. Judges would not decide using phony “legal” language in areas beyond their competence.
There would be broad ideals and rights included such as freedom of speech. But, a range of disputed policy questions not clearly taken off the table would be left to the people themselves.
The book was published before the Supreme Court decided if basic aspects of the Affordable Care Act (health insurance law aka “Obamacare”) is constitutional. Prof. Segall argues the legislation is a complicated policy question that the Congress clearly had discretion to pass.
The Supreme Court has decided various cases concerning ACA and as a whole (with exceptions) upheld its provisions. Prof. Segall since the book was published noted that he appreciates the basic results, but has written that he thinks the Supreme Court got a lot of the details wrong.
Points to Ponder
Prof. Segall is upset at “unelected” judges having so much power. Consider how federal judges are selected. They are nominated by presidents and confirmed by the U.S. Senate. Is it totally fair to argue federal judges are “unelected” when the people elect those who select them?
Justices clearly have a lot of power though Prof. Segall grants only so much. For instance, justices only decide cases that come to them. But, consider other limits.
The justices proverbially do not have the “power of the purse or sword.” Others need to carry out court judgments. What other limits on Supreme Court power can you list?
About the Author
Eric J. Segall has been a law professor at Georgia State, where he teaches about the federal courts and the Constitution, for the last three decades. Before then, he worked in private practice and in the U.S. Justice Department.
Prof. Segall is not shy about sharing his opinions (including on Twitter and at Dorf at Law), along with pictures of his dogs. He also is a regular legal commentator on various media outlets, including providing op-ed to publications such as the New York Times and Slate.
He has a podcast and has interviewed authors reviewed on this website, including Prof. Franks. The podcast is named “Supreme Myths.” He has also written Originalism as Faith.
Is Supreme Myths a Reliable Source?
Prof. Segall is an expert on constitutional law and has taught about the cases addressed on a regular basis for many years.
I would push back on certain historical judgment calls he makes, history and political history also not being his area of expertise. For instance, he suggests post-Civil War cases like Plessy v. Ferguson hurt the cause of racial equality.
I question this since (sadly) the Supreme Court basically matched the general public when upholding segregation. His historical analysis of the post-Roe v. Wade years is abbreviated. Many others, including Mary Ziegler (who he interviewed), provide more nuanced analysis there.
I have found him generally trustworthy and reliable, having engaged with him on his blog (when it allowed comments) and on Twitter. But, I would be a bit careful about certain judgment calls.