Closing the doors to the courthouse

In the course of being questioned by the Senate Judiciary Committee for his prospective confirmation, Neil Gorsuch agreed with a questioner that "the power of the courts should be limited, referring to 'the modest station we judges are meant to occupy in a democracy.'"

In the first chapter of his new book, "Closing the Courthouse," Erwin Chemerinsky writes, "I believe the [federal] judiciary's essential role is to enforce the Constitution, and legal doctrines must facilitate its performance of this task. There are alternative conceptions of the judicial role, but I reject them."

These two learned gentlemen, both students of the Constitution, are not even close enough to negotiate. But it is Neil Gorsuch who is on the Supreme Court.

Erwin Chemerinsky has studied the Constitution, taught the Constitution at Duke, USC and UC Irvine law schools, argued the Constitution before the Supreme Court, and written copiously about the Constitution. "Closing the Courthouse" is his most recent statement of his views, a strong statement that the Supreme Court has failed to be the protector of democratic values that was envisioned for it by the founders.

Subtitled, "How Your Constitutional Rights Became Unenforceable," the explanation may not be found in a focus on substantive law. Chemerinsky addresses the plethora of jurisprudential and procedural doctrines that have the effect of closing the courthouse doors to meritorious efforts to enforce constitutional rights.

When a plaintiff is not permitted to bring his case to a court, although there may not be a decision on the merits of his claim, the defendant has won the case. Chemerinsky throughout the book details myriad cases that are decided not by a court which has heard neither the facts of the case, nor the arguments of counsel on the law, but by a gatekeeper decision that the suit may not be brought. The effect is often to protect the government from being sued for abusing someone's rights, or a defendant from being held to account for unlawful actions.

Among the impediments discussed in detail are sovereign immunity, which Chemerinsky maintains is not authorized by the Constitution, and conflicts with many other constitutional provisions; the immunity of government officers; the rules that require specific elements of standing for suit in federal court; and limitations on class actions, particularly those brought by employees. He argues that the doctrine of "political questions" which prevents basic issues, including the requirement of Article IV that every state is guaranteed a republican form of government, from being litigated, has effectively read the guaranty clause out of the Constitution.

Among the many cases detailed in this volume, United States v. Lyons is an example of the use of standing doctrine to render a questionable police practice immune from judicial review. Lyons was subjected to and injured by a police stranglehold, which he claimed violated the First, Fourth, Eighth and 14th Amendments. The Supreme Court held that he lacked standing to seek an injunction to prevent the use of the stranglehold by police, because he could not demonstrate that he would personally be subjected to it in the future. The court found that nothing distinguished him from any other member of the public that might be subjected to the practice and therefore lacked "injury in fact," the first requirement of standing. (The court enforces standing rules on the basis of the "cases and controversies" language of Article III. Chemerinsky maintains that the Constitution intends no such requirement.)

He writes at some length about habeas corpus, the "Great Writ" which is expressly protected by the Constitution. The courts and Congress have combined to limit the ability of the federal courts to hear habeas claims. Federal courts may no longer hear Fourth Amendment claims by state prisoners. Many post-trial claims have been precluded, and limits on showing procedural errors have bene imposed.

But perhaps no recent change has had the impact on the closed courthouse door as the Iqbal doctrine on pleading rules. The Federal Rules of Civil Procedure have long allowed "notice pleading," in federal court cases, requiring only a plain statement of the plaintiff's claim to survive a motion to dismiss. The Iqbal case arose out of a particularly unattractive use of government power following 9/11. Iqbal was detained under maximum security conditions and severely abused by his jailers. He brought suit against the attorney general, the FBI director and other government officials. (Independent investigations by government agencies confirmed his claims.)

The Supreme Court had his claim dismissed for "failure to state a claim on which relief can be granted," the historical (and statutory) basis for finding a complaint inadequate. The court found that the plaintiff had not stated facts that made it "plausible" for a court to find his constitutional rights violated. In so holding the court imported into pleading practice a new and severe requirement, which quickly became the standard response of defendants in rights cases, many of which have consequently been dismissed. It has had its largest effect on civil rights litigation, including constitutional claims.

Chemerinsky writes that after several reviews of Iqbal's complaint, "It is hard to imagine what other facts Iqbal could have put in his complaint to make it more plausible." He adds: "It is striking that the five most conservative justices changed the law in a way that greatly protects defendants from lawsuits."

The chapter titled "Opening the Courthouse Doors" contains further examples of cases throttled before they can be tried. A prime example is the state secrets doctrine, which allows the government to halt legal proceedings with the bare assertion that national security is involved. No investigation or proof is required. Chemerinsky rejects any doctrine that prevents the courts from hearing constitutional claims.

Chemerinsky's scholarship is impeccable, and his prose entirely readable, by lawyer and layperson alike. Readers of his earlier books or those who have heard him speak about the Supreme Court and the Constitution will not be disappointed.

Where to go from here? The book notes the passing of Justice Antonin Scalia, but predates the relevance of either Merrick Garland or Neil Gorsuch. Chemerinsky proposes many reforms, but admits he has no way to know whether any can come about. He notes, as we should, that many of the results he decries were decided by 5-4 votes in the Supreme Court, with strong dissents. But that breakdown leaves little room for optimism in light of the 2016 election and the Gorsuch confirmation.

In conclusion, Chemerinsky asks, "Why have conservative justices so embraced limiting the power of the federal courts to enforce the Constitution? I believe it is a way to achieve the substantive results they desire."

There it is, what liberals and dissenting justices have contended all along, these procedural decisions are in fact holdings of the conservatives on the court to protect governmental and other conservative interests. It is doctrine, after all, that underlies many of these decisions.

But the Supreme Court's breakdown need no longer be described as liberal/conservative. It is a flat out Democratic/Republican split, which will not go away soon. This book does not reflect the 2016 election, or the impact it will have on the court's future jurisprudence, but there is little reason for its author to be optimistic.

And we should not be surprised if Neil Gorsuch leads the Supreme Court further along in its current direction.