Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable

Supreme Court decisions such as Citizens United, which deal with substantive issues, have understandably garnered the most attention from nonlawyers, but law professor Chemerinsky (The Case Against the Supreme Court) demonstrates here that the Court’s procedural decisions are also vitally important. As he notes, “Court decisions rejecting rights get headlines, while rulings dismissing cases on... procedural grounds garner little attention.” The net effect, however, of such dismissals is to close “the federal courthouse doors to those whose rights have been violated.” The professor immediately makes this plain with the horrifying case of current and former female military personnel prevented from suing over sexual assaults they had suffered while in the service. A federal appellate court ruled that they had no legal remedy, because the U.S. government is completely immune from being sued in the absence of an authorizing statute and the Supreme Court has ruled that “people cannot sue others in the military.” Such examples of the deficient logic behind adherence to doctrines such as sovereign immunity, a relic of English law from the time of Edward I holding that the “King can do no wrong,” make this powerful and impassioned book anything but dry reading. Its cogent analysis is enhanced by practical steps for enabling federal courts to again truly enforce the U.S. Constitution. (Jan.)