Josef K. in Washington

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Law professor Erwin Chemerinsky with students during a bar exam review course, Los Angeles, 2001

Erwin Chemerinsky is one of the country’s most distinguished legal scholars—the dean of the University of California, Berkeley School of Law, the author of several books, and a frequent commentator on the Supreme Court who is able to explain legal complexities clearly. His subject in Closing the Courthouse Door is a dozen legal doctrines that make it difficult or impossible to vindicate our constitutional rights through the judicial system. A few were created by Congress, but mostly they are the work of the Supreme Court, which in his view goes to great lengths to stop Americans from getting their day in court. The twentieth-century expansion of civil liberties and civil rights encouraged Americans to go to court to hold government and business more accountable. The Court responded by reinterpreting the Constitution and procedural rules to stop lawsuits it viewed as undesirable.

Many of these doctrines are not well understood by people outside the legal profession. For example, as Chemerinsky observes:

If the Supreme Court were to hold that the government can give unlimited amounts of money to religious schools, the decision would make the front-page headline of every newspaper in the country. But if the Court were to hold that no one has standing to challenge the government when it gives money to parochial schools, that would get far less attention. Yet the effect is exactly the same: if no one can challenge a government action in court, the government can do what it wants.

Article 3 of the Constitution ensures that the courts only hear genuine “cases and controversies,” but it was not until the 1920s that the Supreme Court began using it to limit who can sue the government. In 1992, the Court declared, in Lujan v. Defenders of Wildlife, that citizens lack standing to challenge a government action in court unless it causes “a concrete and particularized” injury to the person suing. Chemerinsky thinks this is absurd: he argues that “it makes no sense to have a situation where no one can sue because of a hypothetical concern over wanting to make sure that there is the best plaintiff.” (True to his principles, Chemerinsky is one of the legal scholars who has filed a lawsuit challenging Donald Trump’s business ties as a violation of the Constitution’s emoluments clause—a challenge that some experts predict will fail for lack of standing.)

What is standing? The standing doctrine prevented Adolpho Lyons, an African-American choked until he became unconscious by Los Angeles police in a routine traffic stop in 1976, from requesting an injunction against the LAPD’s chokehold policies. He was able to sue for his injuries and collected a nominal settlement, but the Supreme Court declared that Lyons could not challenge the police policy of using chokeholds,…

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