Lain on Plessy, Buck v. Bell, Korematsu--and Chemerinsky

Corinna Barrett Lain, University of Richmond School of Law, has posted Three Supreme Court "'Failures" and a Story of Supreme Court Success, which appears in Vanderbilt Law Review 69 (2016):

Plessy v. Ferguson. Buck v. Bell. Korematsu v. United States. Together, these three decisions legitimated ‘separate but equal,’ sanctioned the forced sterilization of thousands, and ratified the removal of Japanese Americans from their homes during World War II. By Erwin Chemerinsky’s measure in The Case Against the Supreme Court, all three are Supreme Court failures — cases in which the Court should have protected vulnerable minorities, but failed to do so. Considered in historical context, however, a dramatically different impression of these cases, and the Supreme Court that decided them, emerges. In two of the cases — Plessy and Buck — the Court’s ruling reflected the progressive view at the time, and in the third — Korematsu — the extralegal context of the case was strong enough to draw the support of Justices Black and Douglas, two of the Court’s most staunch civil liberties defenders. Plessy, Buck, and Korematsu are potent reminders of how historical context impacts what the Supreme Court can realistically do. That said, viewing the Supreme Court ahistorically does have a curious upside, at least for those who want the Court to protect. However historically inaccurate, the Supreme Court’s image as a protector ready and able to transcend its cultural constraints has value in its own right, setting in motion forces that can, over time, actually ease those constraints and inspire the Court to protect. More remarkable yet is the Supreme Court’s role in creating this heroic, countermajoritarian image in the first place. With the Court as creator of the very expectations by which it is judged a failure, the fact of Chemerinsky’s disappointment in the Supreme Court is itself stunning evidence of an untold, and decidedly consequential, story of Supreme Court success.