Erwin Chemerinsky

  • October 22, 2014
    Guest Post

    by Jason Steed, Associate at Bell Nunnally, and president of the Dallas-Ft. Worth Lawyer Chapter

    *This is part one of a three part series.

    There’s been a lot of talk lately about term limits for Supreme Court justices. Norm Ornstein brought renewed attention to the issue in May. Erwin Chemerinsky has proposed term limits in his new book, The Case Against the Supreme Court. And a recent poll asked about it, and shows nearly 70% of the public thinks term limits are a good idea.

    I was invited to write a blog post on this topic because I have a short article forthcoming in the December issue of The Federal Lawyer, which also makes a case for term limits. But unlike Ornstein and Chemerinsky, my primary focus isn’t the politics or ideology of the Court. My focus is on the 1968 presidential election.

    In a nutshell, a confluence of circumstances turned the 1968 election into a watershed for the Supreme Court. The newly elected Nixon was suddenly able to appoint four new justices to the Court—in his first term—transforming the progressive Warren Court into the moderately conservative Burger Court, and setting a trajectory (through the appointment of William Rehnquist) for the much more conservative Court that we have today. (You’ll have to read the article when it comes out, to get my full take on the story.)

    Yes, this transformation of the Court—politically and ideologically—has been deeply troubling for progressives over the last 40 years. But it would be a mistake, when making an argument for term limits, to spend too much time complaining about the longevity of the Court’s rightward bent. Imposing term limits will require a constitutional amendment, which will require support from both sides. And you can’t get support from both sides if you’re complaining about something that one side really, really likes.

  • September 30, 2014

    by Caroline Cox

    Robert Barnes of The Washington Post discusses Erwin Chemerinsky’s new book and bold criticisms of the Supreme Court. Chemerinsky recently contributed to the ACSblog Book Talk to discuss his work.

    In The Atlantic, Dawinder Sidhu looks at the next religious freedom case facing the Supreme Court and how it will test how the justices apply Hobby Lobby to minority religions.

    Adam Liptak writes in The New York Times that an answer from the Supreme Court on same-sex marriage is likely to come next June.

    Bloomberg writer Greg Stohr reports that the Supreme Court has blocked an early voting period in Ohio and reinstated voting limits the state passed this year.

    John Nichols writes for The Nation on the Ohio early voting decision and what it says about the Supreme Court’s priorities. 

  • September 25, 2014
    BookTalk
    The Case Against the Supreme Court
    By: 
    Erwin Chemerinsky

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    How should we assess the Supreme Court’s performance over the course of American history? That is the central question of my new book, The Case Against the Supreme Court. My conclusion is that the Supreme Court often has failed at its most important tasks and at the most important times. Recognizing this is important in order to focus on how to improve the institution and make it much more likely to succeed in the future.

    Obviously the evaluation of any institution requires criteria by which it can be assessed.   In the introductory chapter, I posit that the Court exists, above all, to enforce the Constitution. The Constitution exists to limit what government and thus the democratic process can do. As Marbury v. Madison said long ago, the limits contained in the Constitution are meaningless unless enforced and that is the “province and duty” of the courts. The judiciary is particularly important in protecting the rights of minorities (of all sorts) who cannot rely on, and should not have to rely on, the democratic majority. Also, the courts need to play a special role in times of crisis to ensure that society’s short-term passions do not cause it to lose sight of its long-term values.

    I believe that all, liberal and conservative, can agree that these are fair criteria by which to assess the Supreme Court. I also think that liberals and conservatives can agree that the Court very often has failed. Part I of the book looks at the Court historically. Chapter one looks at the Court’s dismal record over the course of American history with regard to race. For the first 78 years of American history, from 1787 until 1865, the Court aggressively protected the rights of slave owners and upheld the institution of slavery.  For 58 years, from 1896 until 1954, the Court approved and enforced the doctrine of “separate but equal.” The Court’s failure with regard to race continues to this day, as evidenced by the decision in Shelby County, Alabama v. Holder, which declared unconstitutional a key provision of the Voting Rights Act of 1965. This is the first time since the 19th century that the Court has invalidated a federal civil rights law to protect racial minorities.

  • September 24, 2014

    by Caroline Cox

    In The New York Times, Bob Kocher and Farzad Mostasharib write about McAllen, Texas, an Affordable Care Act success story.  

    Jonathan Topaz explains in Politico why Justice Ruth Bader Ginsburg believes she cannot retire now.

    At Hamilton and Griffin on Rights, Erwin Chemerinsky explains his reasons for writing his new book, The Case Against the Supreme Court.

    Jonathan Bernstein writes for Bloomberg View on the importance of fixing voter registration to make it easier for citizens to vote.

    Patrick Marley of the Milwaukee Journal Sentinel reports on a Wisconsin judge’s refusal to follow a Supreme Court order to dismiss a voter ID case.

    At Cornerstone, Leslie Griffin argues against the Court’s decision to make a cost-free First Amendment in Thomas and Hobby Lobby.

  • July 21, 2014
    Guest Post

    by Erwin Chemerinsky and Catherine Fisk. Chemerinsky is Dean and Distinguished Professor of Law and Fisk is the Chancellor’s Professor of law at the University of California, Irvine School of Law.

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    The fiftieth anniversary of the enactment of the Civil Rights Act of 1964 is an occasion worth celebrating. On July 2, 1964, President Lyndon Johnson signed into law the first major civil rights law adopted since the end of Reconstruction. Its provisions prohibit racial discrimination in some crucial areas of society.

    Title II forbids hotels and restaurants from discriminating based on race, ending a form of racial separation that existed throughout the United States and especially in the South.  Title VI prevents recipients of federal funds from discriminating on the basis of race, a provision that was crucial in forcing many school systems to desegregate. Title VII prohibits employment discrimination based on race, sex, or religion. Initially this was limited to private employers, but Congress quickly expanded its coverage to government entities.

    The enactment of the Civil Rights Act of 1964 was a political triumph for Lyndon Johnson. He appealed to the nation’s collective guilt over the assassination of President Kennedy and urged the enactment of the law as a tribute to the slain leader. A Southerner and a former Senate majority leader, Johnson was able to persuade opponents to end their filibuster and allow a vote in the Senate, which then joined the House of Representatives in passing the bill. Over two-thirds of the members of each house of Congress voted in favor of it.

    But what is often forgotten is that the opposition to the Act was not based solely on racism. Those who disagreed invoked the principle of freedom of association: owners of businesses should be free to do business with and employ whomever they want. The claim was that the owner of a hotel or a restaurant should be free to refuse service on any basis to anyone, including race. Similarly, the argument was that employers should be able to choose who they want to associate with in the workplace. Thus, opponents of the Act claimed that owners should be free to use their property however they want and it was wrong for the federal government to restrict their choices by prohibiting discrimination.