Time for the Supreme Court to Look in the Mirror

IN HIS LATEST BOOK, Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, Berkeley Law Dean Erwin Chemerinsky doesn’t pull his punches. It opens our eyes to a critical reason that we continue to have problems with police violence and racism in law enforcement. Although the judges claim to be calling “balls and strikes”, they have long stood up for one side – the police – and have not taken the necessary steps to protect the civil rights of our citizens. While some may view Chemerinsky’s assertion as blasphemous, others will praise the purifying light it throws on the Supreme Court’s role in sustaining the problems of our criminal justice system. Racism is not new; excessive police violence is not new; The blatant disregard for constitutional rights is not new. What is new, however, is that a man as respected and respected as Chemerinsky is willing to spell out in black and white the Supreme Court’s complicity in the problems that plague our judicial system.

Chemerinsky masterfully presents his arguments, linking current events with key decisions of the Supreme Court that laid the groundwork for these conflicts. What better case than George Floyd’s? The trauma is still with us – seeing Floyd die over the course of nine minutes while Derek Chauvin, a white Minneapolis police officer, put a knee on his neck is an event any reader will be familiar with. How could that happen?

Chemerinsky quickly shifts from the facts of Floyd’s case to the troubling history of police practices, particularly chokeholds, in America. And it doesn’t take long before he realizes the role of the Supreme Court in continuing these practices. In 1983 the Supreme Court ruled City of Los Angeles v. Lyons’ problem in our own backyard: Los Angeles police routinely used strangleholds on black suspects. Adolph Lyons, a 24-year-old African American, was stopped over a blown taillight. (Sounds familiar?) Officers approached him with drawn revolvers. They forced him to “take the position,” facing his car, legs apart and hands folded behind him. After patting him, Lyons dropped his hands, but the officers slapped his hands on the roof and he complained of pain from a bunch of keys digging into the palm of his hand. The officers perceived Lyons as “mouth-talking” and then put a stranglehold on them. Lyons passed out. When he woke up, he was face down on the floor, choking, gasping, spitting blood, and urinating and deflating on himself. The officers then issued him a parking ticket and let him go.

Lyons sued the City of Los Angeles for stopping these practices. They were widespread across the department and across the country. United States District Judge Robert Takasugi ruled in favor of Lyon and ordered then-LAPD chief Daryl Gates to stop the practice. The evidence supporting the judge’s order was overwhelming. Lyons didn’t want to get rich from the incident. Instead, he and his lawyers wanted the practice to end. The Supreme Court had the power to contribute, but the judges did not use it. Instead, the court ruled in a 5: 4 ruling that Lyons was not empowered to go to court as he was unable to prove that he would personally face the same police action in the future. With this procedural move, the court closed the doors of the courthouse to anyone who tried to prevent the police from using this violent form of restraint. The court didn’t stand up for the little fellow; the court did not stand up against police violence or racism. In cases that could have led to significant changes in police practice, a procedural escape hatch was created.

Since the Warren Court in the 1960s, the Supreme Court has consistently misunderstood how the breed infected the police force in the United States. From the use of slave patrols to the current incarceration of blacks at 5.1 times the rate of whites, racial discrimination has been a reality. However, the Supreme Court seems to have tunnel vision in deciding many of the cases that have come before it since the Warren era.

My criminal trial students know this is true. They read another book by Chemerinsky and his co-author that goes over the cases. This can also be assigned to you in the future. Since Presumed Guilty is a clear examination of some of the Supreme Court’s most notable cases, these holdings are placed in a critical context. Terry v. Ohio, which authorized the “Stop and Frisk” police practice, was a close-up permit for the police to use their instincts – even if they could certainly be influenced by racial prejudice – to stop millions of Americans on the streets. The statistics don’t lie. People of Color are most likely to be stopped – by the millions. In setting his standard of reasonable suspicion, the court set him so low that it will be a rare occurrence that an officer cannot justify such a search. The subjective intention does not matter. The court gave them full powers to do exactly what happened – using pretexts to stop people of color.

Chemerinsky presents both the historical and practical reasons used to explain why the Supreme Court has not been more committed to protecting civil rights. The debate over how much federal agencies, including the Supreme Court, should dictate state practices continues to this day. More than 150 years have passed since the Civil War, but the Supreme Court is still reluctant to dictate how their police departments operate. In fact, over the years it has given them protection from lawsuits brought under the Constitution and the Statutes. “Qualified Immunity” is still in the news. It is a concept drawn up by the court. Under this doctrine, the police enjoy immunity from civil liability unless their actions are so egregious that the Supreme Court previously determined that they violated the rights of the accused and the officers did not act in good faith. In addition, judicial officers and prosecutors enjoy absolute immunity, no matter how outrageous their actions are. In other words, the Supreme Court created a doctrine that makes it clear – and officials no doubt know this – that they have limited, if any, responsibility for their unconstitutional acts.

Suspected guilty is a full review of the Supreme Court rulings that affect almost everyone in our criminal justice system. It is precisely when it appears that the Court may be trying to protect the rights of suspects that the next generation of judges is withdrawing from those rights. This is exactly what happened with the protection of the privilege of the Fifth Amendment from self-incriminations. Yes, the Warren Court ruled against Miranda v Arizona in 1966, which required officials to inform suspects of their constitutional rights before they can be subjected to deprivation of liberty. However, since then there has been a sustained stream of decisions to curtail Miranda. Chemerinsky directly addresses the arguments that educating defendants about their constitutional rights – which is not required when asking suspects for permission to search – could interfere with the police’s ability to work. A study in Salt Lake City showed that suspects waived their Miranda rights in 83.7 percent of interrogations. If anything, we have a problem with suspects making false confessions, not the hypothetical claim that cases remain unsolved without police pushing suspects to confess.

Chemerinsky is tough on the field, but it should be. I started the Innocence Project at Loyola Law School. Our clients spend decades behind bars for crimes they did not commit because the Supreme Court did not set stricter standards for the police. The safeguards against inaccurate eyewitness identification are pitifully inadequate; pressure on the police to cut corners and stop unsuspecting people has increased; and the lack of enforcement of basic constitutional rights, such as Brady’s right to exculpatory evidence, persists.

Ultimately, the aim of this book seems to be more than just bringing the Court to justice. After all, this is difficult with lifelong judges who may not care how the public perceives them. Although they have resisted being labeled political hackers, the connection between their ideologies and the presidents they appointed is evident. Chemerinsky holds the court accountable, but he does not give up change. Instead, he urges reformers to turn around by advocating reform at the state and local levels. We could end the harmful practice of stopping and searching people of color when there is very little suspicion, we could seek consent for searches, we could involve defense counsel in identification procedures, and we could automatically provide legal assistance when someone is interrogated by the police. All of this is possible. It just requires the will.

Instead of abolishing or weakening the police, you install democratic controls. Approve lawsuits against civil servants who violate the constitution and collect data on poor policing. Insist on civil oversight when the Supreme Court won’t play that role.

Years from now, Americans may ask, “Has anyone stood up against the Supreme Court and pulled the curtain?” The answer will be “yes”. Chemerinsky did just that. Now is the time for all of us to look carefully.

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Laurie L. Levenson is a Law Professor and David W. Burcham Chair in Ethical Advocacy at Loyola Law School in Los Angeles.

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