Erwin Chemerinsky

  • July 11, 2016
    Guest Post

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

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

    On Tuesday, March 29, 2016, the impact of Justice Antonin Scalia’s death was apparent when the Supreme Court, by a 4-4 tie, gave public employees unions a huge victory. For decades, foes of unions have wanted the Supreme Court to declare unconstitutional the requirement that non-union members must pay their share of the union dues that go to support the collective bargaining activities of the union. After Friedrichs v. California Teachers Association was argued on January 11, it seemed certain that there were five votes against the unions.   But Justice Scalia’s death on February 13 occurred before the Court released its opinion and the Court was left deadlocked 4-4.

    In 1977, in Abood v. Detroit Board of Education, the Supreme Court reaffirmed that no one can be forced to join a public employees’ union. But the Court held that non-union members can be required to pay the share of the union dues that support the collective bargaining activities of the union. Non-union members benefit from the union in terms of their wages, their hours, and their working conditions. The Court explained that they should not be able to be free riders and benefit without paying their “fair share.” But the Court held that non-union members do not need to pay the part of the dues that support the union’s political activities. The Court explained that it would be impermissible compelled speech in violation of the First Amendment to force non-union members to support political activities with which they disagree. Both government entities and unions have relied on this for decades in entering into thousands of contracts governing the workplace. 

    In recent years, the five most conservative justices on the Court – Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito – have limited Abood and indicated a likely desire to overrule it. For example, in Harris v. Quinn, in 2014, Justice Alito, writing for these five justices, referred to Abood as an “anomaly” and inconsistent with the First Amendment. The Court did not go so far as to overrule Abood, but certainly suggested that the majority would be willing to do so in a case that directly presented that issue to the justices.

    Friedrichs v. California Teachers Association was filed in federal district court in Orange County, California with the goal of it being a vehicle for the Supreme Court to overrule Abood and hold that non-union members do not have to pay their “fair share” of the union dues that go to support collective bargaining. The federal district court and the federal court of appeals obviously cannot overrule a Supreme Court precedent and dismissed the lawsuit. But the Supreme Court granted review on the question of whether it should overrule Abood and the many decisions based on it.

  • February 19, 2016

    by Nanya Springer

    In the week following the death of Supreme Court Justice Antonin Scalia, confusion and misinformation became widespread with regard to U.S. leaders’ constitutional obligations to fill the vacant seat. To explain what the Constitution requires of President Obama and the U.S. Senate, as well as the ramifications of a prolonged vacancy on the high Court, noted professor and legal expert Erwin Chemerinsky on Wednesday joined ACS for a discussion about what comes next.

    Chemerinsky immediately dispelled the myth that a president should not nominate a Supreme Court justice in an election year by simply reading the text of the Constitution. He explained, “What it says in Article II, Section 2, paragraph 2, is that the president ‘shall appoint Ambassadors, other Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . with the Advice and Consent of the Senate.’ So, the Constitution creates a duty for the president to appoint Supreme Court justices by using the word ‘shall.’ There is no clause in Article II that says, ‘but not in an election year.’” He added that “presidents throughout American history have nominated in an election year, the last year of their term.”

    Chemerinsky provided historical data, noting that "over the entire course of American history, 24 times presidents have nominated individuals in an election year . . . and in 21 of 24 instances, the nominee has been confirmed by the Senate. That’s 87.5 percent. If you look at the entire course of American history, and all presidential nominations to the Supreme Court, 86.9 percent have been conformed. So there’s no statistical difference between nominations in the last year of presidency and nominations that come at any other time of the presidency.”

    Clearly, there are consequences that result from having an eight-member Supreme Court, particularly in the event of a 4-4 split. In that situation, Chemerinsky explained, the Court may choose to reconsider the case and seek a resolution on narrow or procedural grounds, put the case over for reargument the next term, or affirm the lower court’s decision without opinion. The latter situation would create complications in the presence of a circuit split because “the same federal law will have varying meanings in different parts of the country.”

    To listen to the full discussion, click here.

  • February 19, 2016

    by Nanya Springer 

    In The Huffington Post, ACS President Caroline Fredrickson urges the U.S. Senate to fulfill its constitutional duty and “give fair and prompt consideration” to any Supreme Court nominee.

    ACS Director of Strategic Engagement Jill Dash comments to Paul Waldman in The Washington Post about the improbability that a new Supreme Court would immediately overturn high-profile decisions. “The four more liberal justices currently on the Court take precedent and stare decisis seriously,” adds ACS Issue Brief author Samuel Bagenstos.

    Perry Cooper at Bloomberg BNA says class actions may see a Renaissance in the near future and notes ACS Board member Erwin Chemerinsky’s prediction that Spokeo Inc. v. Robins will result in a 4-4 split decision.

    In the Emory Corporate Governance and Accountability Review, Caroline Poplin examines the pharmaceutical industry’s misuse of First Amendment doctrine, and ACS Board member Reuben Guttman, with Paul J. Zwier, examines wrongful marketing and pricing practices.

  • January 22, 2016

    by Christopher Durocher

    Presidents Obama’s executive actions on guns, announced this month, have drawn unfair and unwarranted criticism, according to Erwin Chemerinsky, dean of the University of California, Irvine School of Law and one of the nation’s leading legal scholars. In testimony submitted to the Senate in advance of a hearing held this past Wednesday, Chemerinsky, who is also a member of ACS’s board of directors, explains that the president’s actions “are clearly constitutional. The new policies announced by President Obama are relatively modest and are entirely focused on enforcing existing statutes. Thus all are within the permissible scope of executive power without infringing the Second Amendment.”

    Among the president’s executive actions, Chemerinsky notes, is guidance from the Bureau of Alcohol, Tobacco and Firearms (ATF) that “clarifies which gun sellers are ‘engaged in the business’ of dealing firearms, and therefore must obtain federal licenses and conduct background checks on would-be gun purchasers” and directives to the ATF and FBI to “prosecute individuals who illegally attempt to obtain firearms and also to inform state law enforcement whenever a prohibited person in their state fails a background check.” Chemerinsky describes both measures as “common sense” efforts to better enforce existing federal law. He further notes that, “Not one federal court ever has questioned the constitutionality of the federal laws being enforced by President Obama’s executive order.”

  • January 7, 2016
    Guest Post

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

    Those who are occupying the Malheur National Wildlife Refuge in Oregon are making a legal argument that has no basis. The protestors, led by Ammon Bundy and who call themselves “Citizens for Constitutional Freedom,” have made two demands.  

    One is a reduction in the sentences for Dwight Hammond and his son Steven, ranchers who were convicted in 2012 of committing arson on federal lands in Oregon. Their crime has a mandatory minimum sentence of five years in prison, but the federal district court imposed a three-month sentence on Dwight Hammond and two 12 month sentences (to be served concurrently) on Steven Hammond. In October 2015, the Ninth Circuit reversed these sentences as being inconsistent with mandatory minimums required by federal law. Although the protestors are objecting to this, the Hammonds, through an attorney, have stated that they do not support the occupation.

    The other demand involves a claim about the law. The protestors are demanding that the federal government relinquish control over the wildlife refuge and much of the land that the federal government owns in western states. Their argument is that this is land that is legally owned by the state governments.

    But this is a claim without basis in the law. In terms of the Constitution, there is no doubt that the United States government can own land. In fact, Article IV, section 3 of the Constitution gives Congress the authority to control all property of the United States.  The United States government has owned and managed property since the first days of the nation.