A study of the Supreme Court and civil Rights. Eric
A Supreme Court That Has Gone Wrong
*
<https://www.facebook.com/dialog/feed?app_id=9869919170&link=https%3A%2F%2Fwww.nytimes.com%2F2021%2F08%2F24%2Fbooks%2Freview%2Ferwin-chemerinsky-presumed-guilty.html%3Fsmid%3Dfb-share&name=A%20Supreme%20Court%20That%20Has%20Gone%20Wrong&redirect_uri=https%3A%2F%2Fwww.facebook.com%2F>
*
<https://api.whatsapp.com/send?text=A%20Supreme%20Court%20That%20Has%20Gone%20Wrong%20https%3A%2F%2Fwww.nytimes.com%2F2021%2F08%2F24%2Fbooks%2Freview%2Ferwin-chemerinsky-presumed-guilty.html%3Fsmid%3Dwa-share>
*
<https://twitter.com/intent/tweet?url=https%3A%2F%2Fwww.nytimes.com%2F2021%2F08%2F24%2Fbooks%2Freview%2Ferwin-chemerinsky-presumed-guilty.html%3Fsmid%3Dtw-share&text=A%20Supreme%20Court%20That%20Has%20Gone%20Wrong>
*
<mailto:?subject=NYTimes.com%3A%20A%20Supreme%20Court%20That%20Has%20Gone%20Wrong&body=From%20The%20New%20York%20Times%3A%0A%0AA%20Supreme%20Court%20That%20Has%20Gone%20Wrong%0A%0AErwin%20Chemerinsky%E2%80%99s%20%E2%80%9CPresumed%20Guilty%E2%80%9D%20details%20the%20many%20ways%20the%20Supreme%20Court%20has%20favored%20the%20police%20over%20the%20accused.%0A%0Ahttps%3A%2F%2Fwww.nytimes.com%2F2021%2F08%2F24%2Fbooks%2Freview%2Ferwin-chemerinsky-presumed-guilty.html%3Fsmid%3Dem-share>
*
*
*
[https://static01.nyt.com/images/2021/09/12/books/review/24Urofsky/24Urofsky-articleLarge.jpg?quality=75&auto=webp&disable=upscale]
[https://static01.nyt.com/images/2021/09/12/books/review/24Urofsky/24Urofsky-articleLarge.jpg?quality=75&auto=webp&disable=upscale]
Credit...Trevor Davis
BUY BOOK ▾
When you purchase an independently reviewed book through our site, we earn an
affiliate commission.
By Melvin I. Urofsky
* Aug. 24, 2021, 5:00 a.m. ET
PRESUMED GUILTY
How the Supreme Court Empowered the Police and Subverted Civil Rights
By Erwin Chemerinsky
In the mid-1980s, several scholars — including myself — published analyses of
the Supreme Court under Chief Justice Warren Burger, comparing it with the
preceding Earl Warren era, and nearly all of us concluded that there had not
been much of a jurisprudential change. The consensus was summed up in the
subtitle of one book, “The Counter-Revolution That Wasn’t.” After reading
“Presumed Guilty,” Erwin
Chemerinsky’s<https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/>
stunning indictment of the Burger court, and of the Rehnquist and Roberts
courts that followed, all of us would have to make major revisions if there
were ever to be new editions.
As anyone teaching constitutional law or history can tell you, very few cases
came before the Supreme Court prior to 1953 involving the Fourth, Fifth and
Sixth Amendments to the Constitution, the ones that provide protections for
people accused of crimes. In 1833, the Supreme Court had held that the Bill of
Rights did not apply to the states, but starting in the 1920s, the court
interpreted the due process clause of the 14th Amendment to “incorporate” the
protections of the Bill of Rights and apply them to the states as well as the
federal government. The criminal clauses were among the last to be adopted, and
nearly all the major cases came during the years that Earl Warren presided over
the court (1953-69).
The Warren
court<https://supremecourthistory.org/history-of-the-court-history-of-the-courts/history-of-the-courts-the-warren-court-1953-1969/>
is clearly the hero of Chemerinsky’s tale, in that for the first and only time
in our judicial history a majority of the justices cared about the rights of
the accused. The court, among other things, adopted the exclusionary rule
banning evidence seized without a proper warrant, required states to provide
lawyers for defendants who could not afford one and — perhaps most famously —
required police to give the “Miranda”
warning<https://www.law.cornell.edu/wex/miranda_warning> to those whom they
detained.
ADVERTISEMENT
Continue reading the main
story<https://www.nytimes.com/2021/08/24/books/review/erwin-chemerinsky-presumed-guilty.html?action=click&algo=bandit-all-surfaces-breadth&block=trending_recirc&fellback=false&imp_id=494047827&impression_id=8ef758da-04d6-11ec-87cc-d78f8389811d&index=3&pgtype=Article&pool=pool%2F91fcf81c-4fb0-49ff-bd57-a24647c85ea1®ion=footer&req_id=594449249&surface=eos-most-popular-story&variant=1_bandit-all-surfaces-breadth#after-story-ad-1>
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.
Editors’ Picks
<https://www.nytimes.com/2021/08/24/magazine/therapy-roommates-ethics.html?action=click&algo=identity&block=editors_picks_recirc&fellback=false&imp_id=81862853&impression_id=d698bfd0-04d6-11ec-b442-f1726d100fe9&index=0&pgtype=Article&pool=editors-picks-ls®ion=ccolumn&req_id=951390531&surface=home-featured&variant=0_identity&action=click&module=editorContent&pgtype=Article®ion=CompanionColumn&contentCollection=Trending>
[https://static01.nyt.com/images/2021/08/29/magazine/29mag-ethicist/29mag-ethicist-square640.jpg?quality=75&auto=webp&disable=upscale&width=350]
My Roommates Have Been Listening to My Therapy Sessions. Is That OK?
<https://www.nytimes.com/2021/08/24/style/cotton-totes-climate-crisis.html?action=click&algo=identity&block=editors_picks_recirc&fellback=false&imp_id=234438125&impression_id=d698bfd1-04d6-11ec-b442-f1726d100fe9&index=1&pgtype=Article&pool=editors-picks-ls®ion=ccolumn&req_id=951390531&surface=home-featured&variant=0_identity&action=click&module=editorContent&pgtype=Article®ion=CompanionColumn&contentCollection=Trending>
[https://static01.nyt.com/images/2021/08/23/fashion/23cottontotes-1/23cottontotes-1-square640-v2.jpg?quality=75&auto=webp&disable=upscale&width=350]
The Cotton Tote Crisis
<https://www.nytimes.com/2021/08/23/dining/maine-sea-scallops.html?action=click&algo=identity&block=editors_picks_recirc&fellback=false&imp_id=315046272&impression_id=d698e6e0-04d6-11ec-b442-f1726d100fe9&index=2&pgtype=Article&pool=editors-picks-ls®ion=ccolumn&req_id=951390531&surface=home-featured&variant=0_identity&action=click&module=editorContent&pgtype=Article®ion=CompanionColumn&contentCollection=Trending>
[https://static01.nyt.com/images/2021/08/25/dining/23callops10/23callops10-square640.jpg?quality=75&auto=webp&disable=upscale&width=350]
Sea Scallops Farmed in Maine Aren’t Just Sustainable. They’re Helping Their
Habitat.
Continue reading the main
story<https://www.nytimes.com/2021/08/24/books/review/erwin-chemerinsky-presumed-guilty.html?action=click&algo=bandit-all-surfaces-breadth&block=trending_recirc&fellback=false&imp_id=494047827&impression_id=8ef758da-04d6-11ec-87cc-d78f8389811d&index=3&pgtype=Article&pool=pool%2F91fcf81c-4fb0-49ff-bd57-a24647c85ea1®ion=footer&req_id=594449249&surface=eos-most-popular-story&variant=1_bandit-all-surfaces-breadth&action=click&module=editorContent&pgtype=Article®ion=CompanionColumn&contentCollection=Trending#after-pp_edpick>
ADVERTISEMENT
Continue reading the main
story<https://www.nytimes.com/2021/08/24/books/review/erwin-chemerinsky-presumed-guilty.html?action=click&algo=bandit-all-surfaces-breadth&block=trending_recirc&fellback=false&imp_id=494047827&impression_id=8ef758da-04d6-11ec-87cc-d78f8389811d&index=3&pgtype=Article&pool=pool%2F91fcf81c-4fb0-49ff-bd57-a24647c85ea1®ion=footer&req_id=594449249&surface=eos-most-popular-story&variant=1_bandit-all-surfaces-breadth#after-story-ad-2>
Whether the furor unleashed by Black Lives Matter will lead to state and city
governments reforming their police departments is yet to be seen, but all
lawmakers, in fact all concerned citizens, need to read this book. It is an
eloquent and damning indictment not only of horrific police practices, but also
of the justices who condoned them and continue to do so.
Melvin I. Urofsky is the author of “Dissent and the Supreme Court” (2015) and,
most recently, “The Affirmative Action Puzzle” (2020).
PRESUMED GUILTY
How the Supreme Court Empowered the Police and Subverted Civil Rights
by Erwin Chemerinsky
384 pp. Liveright. $27.95.
