The Supreme Court, Constitutional Limits, and the Protection of Minorities: Understanding Erwin Chemerinsky’s Judicial Philosophy
Erwin Chemerinsky’s view of the United States Supreme Court begins with a fundamental question: What is the Constitution designed to do, and what institutional role should the Supreme Court play in enforcing it?
For Chemerinsky, the answer is not limited to resolving disputes between private parties or interpreting isolated provisions of constitutional text. His broader premise is that the Constitution simultaneously creates governmental power and restrains its exercise. From that premise follows a particular understanding of the Supreme Court: the Court exists, in significant part, to enforce constitutional limits even when doing so places it in opposition to the preferences of a political majority.
This conception of judicial power helps explain both Chemerinsky’s criticism of the Supreme Court and his expectations for what the institution ought to accomplish.
The Constitution Both Empowers and Restrains Government
Chemerinsky begins from the structural nature of the Constitution itself.
The Constitution creates the institutions of the federal government and assigns authority among them. Congress receives legislative authority, the President exercises executive authority, and the judiciary exercises judicial power. Yet the Constitution does more than establish government. It also establishes boundaries around governmental authority.
The Bill of Rights and subsequent constitutional amendments provide particularly important limitations by identifying rights and liberties that government generally may not infringe.
Chemerinsky therefore sees constitutional government as involving two related functions: granting government sufficient authority to govern while simultaneously limiting that authority in order to protect individuals from governmental abuse.[1]
This dual function is central to his understanding of the Supreme Court.
If the Constitution merely created governmental institutions without restricting them, there would be considerably less need for an independent judiciary empowered to invalidate governmental action. But because the Constitution places substantive and procedural restrictions on political power, someone must ultimately determine when those restrictions have been violated.
Within the American constitutional structure, that responsibility frequently falls to the Supreme Court.
Constitutionalism as a Restraint on Majority Rule
Chemerinsky’s reasoning becomes particularly significant when examining the relationship between constitutional government and democracy.
American government is democratic, but it is not based upon unrestricted majority rule.
A political majority can ordinarily protect its own interests through elections. If a sufficiently large group of voters wants legislation enacted, officials elected by that majority will often have political incentives to respond.
The problem becomes considerably different for minorities.
A racial, religious, political, social, or economic minority may lack the numerical strength necessary to protect itself through the ordinary political process. In some circumstances, the majority may have little incentive to protect the minority. In others, the majority may affirmatively favor policies that burden or disadvantage the minority.
Chemerinsky therefore views constitutional protections as particularly important when ordinary democratic mechanisms are least likely to protect those who need protection.
The Constitution, in this sense, acts as a restraint upon democracy itself.
That is not necessarily a rejection of democratic government. Rather, it reflects an understanding that democratic legitimacy alone does not make every exercise of governmental power constitutionally permissible.
A majority may win an election and still violate the Constitution.
A legislature may enact a popular law and still exceed constitutional limitations.
Government officials may act with overwhelming public support and nevertheless infringe upon protected rights.
Chemerinsky’s constitutional theory therefore recognizes an inherent tension between majority rule and constitutional restraint.
The Supreme Court as a Check on the Democratic Majority
From this understanding of the Constitution, Chemerinsky derives his conception of the Supreme Court.
If constitutional protections are intended in part to restrain the majority, the institution responsible for enforcing those protections cannot simply defer to majority preferences whenever constitutional rights become politically inconvenient.
The Supreme Court must sometimes be willing to act against the wishes of the majority.
This is where Chemerinsky’s conception of judicial review becomes especially important.
The Court is not merely another participant in democratic politics. Its constitutional function requires a degree of independence from political pressure precisely because constitutional disputes frequently arise when the political branches have already acted.
If courts simply ratified whatever the legislature, executive branch, or electorate preferred, constitutional limitations would provide substantially less protection.
Chemerinsky consequently identifies protection from majority oppression as an important justification for an independent judiciary.
Why Judicial Independence Matters
The lifetime tenure of federal judges provides institutional support for this role.
Supreme Court justices do not stand for election and, under Article III, ordinarily remain in office during good behavior. This structure deliberately insulates federal judges from many of the immediate political pressures confronting elected officials.
Chemerinsky sees this independence as essential to the Court’s ability to protect constitutional rights.
A justice deciding whether a politically unpopular minority has been treated constitutionally should not have to calculate whether protecting that minority will result in electoral defeat at the next election.
Likewise, constitutional rights should not depend entirely upon prevailing public sentiment.
Lifetime tenure therefore provides more than job security. Within Chemerinsky’s framework, it helps create the institutional independence necessary for judges to enforce constitutional principles even when their decisions are unpopular.[3]
This independence is especially important when constitutional adjudication requires the judiciary to tell a powerful majority that there are limits to what it may do.
The Counter-Majoritarian Character of Chemerinsky’s Philosophy
Chemerinsky’s argument reveals a judicial philosophy that can fairly be characterized as strongly concerned with the counter-majoritarian function of constitutional adjudication.
That does not necessarily mean that courts should routinely substitute their preferences for those of elected officials.
Rather, it means that judicial legitimacy cannot be measured solely by whether judicial decisions correspond with majority opinion.
A Supreme Court that never confronts the political branches would provide little meaningful protection when constitutional limits are most needed.
Chemerinsky’s analysis therefore places substantial importance on the judiciary’s willingness to protect constitutional principles and minority rights even when such decisions conflict with popular sentiment.
This orientation also helps explain why he can be highly critical of the Supreme Court.
If one believes that a central purpose of the Court is to enforce constitutional limitations against powerful political majorities, then the appropriate measure of the institution is not simply whether it has exercised judicial review.
The more important question becomes:
Has the Court used its independence effectively to protect constitutional rights when the political process failed to do so?
Chemerinsky’s criticism arises, in significant part, from his belief that the Court has too often failed that test.
What This Suggests About His Political and Judicial Philosophy
Chemerinsky’s approach reflects skepticism toward unconstrained governmental power and toward the assumption that democratic majorities will reliably protect minority interests.
His philosophy appears grounded in several related principles.
First, constitutional rights must have meaningful force even when enforcing them is politically unpopular.
Second, political majorities cannot be relied upon as the exclusive protectors of individuals and minority groups.
Third, an independent judiciary is necessary because constitutional enforcement sometimes requires decisions that elected officials would have little political incentive to make.
Finally, the legitimacy of judicial review derives in substantial part from the judiciary’s responsibility to enforce constitutional limitations rather than merely follow prevailing political preferences.
Taken together, these principles portray the Supreme Court as an institution that should sometimes stand apart from democratic majorities rather than simply reflect them.
Conclusion
Chemerinsky arrives at his conception of the Supreme Court by beginning with his understanding of the Constitution itself.
The Constitution grants governmental authority, but it also restricts that authority. It protects individual rights and establishes limits that political majorities may not legitimately disregard. Because majorities are generally capable of protecting themselves through democratic processes, constitutional protections become particularly important for minorities who may lack comparable political power.
From this perspective, the Supreme Court has a distinctive responsibility.
Its purpose is not simply to resolve cases or interpret constitutional language in the abstract. It must also be prepared to enforce constitutional limits against the government and, when necessary, against the preferences of a powerful democratic majority.
Judicial independence—including lifetime tenure—helps make that role possible.
Chemerinsky’s philosophy therefore reflects a central concern about the concentration and exercise of political power: democracy is indispensable, but democracy alone is not sufficient. Constitutional government requires meaningful limits on majority power, and an independent judiciary remains one of the institutions charged with enforcing those limits.
References
- Erwin Chemerinsky, The Case Against the Supreme Court, pp. 6–7 (Kindle ed. 2015).
- Erwin Chemerinsky, The Case Against the Supreme Court, p. 8 (Kindle ed. 2015).
- Erwin Chemerinsky, The Case Against the Supreme Court, pp. 9–10 (Kindle ed. 2015).