Unto the Breach: An interview with the all too candid Dean Erwin Chemerinsky

We should realize that this is an emperor that truly has no clothes. For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society. Erwin Chemerinsky (2014)

I am very pleased to interview Dean Erwin Chemerinsky in connection with his eighth book, The Case Against the Supreme Court (Viking, 2014) – this in addition to the 200-plus scholarly articles he has published. One of those articles was the foreword to the Harvard Law Review’s 1988 Supreme Court Term issue. His first scholarly article was published 36 years ago, this when he was associated with the D.C. firm of Dobrovir, Oakes, & Gebhardt. Today, Chemerinsky’s casebook, Constitutional Law, is one of the most widely read law textbooks in the country.

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

Unlike most academics, he also has a practitioner’s flare for the law, having argued five cases in the Supreme Court, among other courts. Last year, National Jurist magazine named Dean Chemerinsky as the most influential persons in legal education while the Anti Defamation League honored him for his commitment and contributions to freedom and education. And in 2007, Douglas Kmiec labeled him as “one of the finest constitutional scholars in the country.”

True to his reputation, Dean Chemerinsky’s new book invites us to think – and think hard – about some of our gospel “givens” about the Court, its members, its procedures, and its future.

Thank you Dean Chemerinsky for taking the time to answer my questions, and congratulations on the publication of your latest book.

* * * *

Question: For someone who argues cases before the Supreme Court and who writes on and teaches about the Court, yours is a rather provocative title. Why did you choose it?

Chemerinsky: The title captures the thesis of the book. As I reflect on it, I realize that the Supreme Court has often failed, often at the most important times and at its most important tasks. I think that this is a conclusion that both conservatives and liberals can agree to and need to realize. The Supreme Court’s decisions on race, its rulings in times of crisis, its decisions during the Lochner era are powerful examples where I think liberals and conservatives would agree that the Court did great harm to society. That is the foundation of the case against the Supreme Court. I want to see the Court made better and the impetus for thus must be recognizing that there is a need for reform.

Go here for Dean Chemerinsky’s oral argument in the Supreme Court in Tory v. Cochran (2005).

Question: You write: “I discovered in my own mind I have been making excuses for the Court. The Supreme Court is not the institution that I once revered.” What brought about this change of heart for you?

Carrie Buck

Carrie Buck

Chemerinsky: One semester I was teaching Buck v. Bell (1927), the Supreme Court decision that upheld Virginia’s eugenics law and where Justice Oliver Wendell Holmes infamously declared “three generations of imbeciles are enough.” After class, I realized that I had been making excuses for the Court in class. I did some research and realized that 60,000 people were involuntarily surgically sterilized as a result of the Court’s decision and the eugenics movement. As I thought about it, I realized that I often was making excuses for the Court in my teaching and writing.

Question: Like many others (both conservative and liberal), you fault Justice Holmes for his “offensive and insensitive” opinion in Buck v. Bell. Fair enough. What is often overlooked, however, is that Justice Louis Brandeis (one of the most humane defenders of civil rights and liberties) joined that opinion. Why? Does that give you any reflective pause? How do you explain that?

Chemerinsky: As always, the explanation must be complex rather than simple. It was at a time when progressives were defining themselves, in part, by urging deference to government as a way of criticizing the Lochner era decisions. It was at a time when the eugenics movement had great support in society. It was at a time when the Court had begun to protect non-textual rights concerning autonomy (e.g., Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)), but had not gone far in this direction.

Does this give me reflective pause? Buck v. Bell was tragically wrong when it was decided and it is inexcusable that the Court allowed states to surgically sterilize people who had done nothing wrong.

[Re Brandeis: For a critical take on his civil rights/civil liberties record, consider David Bernstein, “From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law,” Notre Dame Law Review (2014)]

Question: You maintain “the Supreme Court’s legitimacy is not fragile.” That cuts against the conventional wisdom, certainly the prudential wisdom. Please explain to us why you think this so.

UnknownChemerinsky: The Court’s legitimacy is the product of all that it has done over 200 years.   Over this time, it has firmly established its role.  I agree with what John Hart Ely wrote in Democracy and Distrust (1980) that the Court’s legitimacy is robust. Some such as Felix Frankfurter and Alexander Bickel argued that the Court must be restrained to preserve its fragile legitimacy. Brown v. Board of Education (1954) shows the fallacy of that position. Nothing the Court has done has been more controversial or done more to enhance its institutional legitimacy. There are virtually no instances in American history of people disobeying the Court and those that occurred, such as in defiance of desegregation orders, only enhanced the Court’s legitimacy.

No single decision (or group of decisions) will seriously affect the Court’s legitimacy. I remember after Bush v. Gore hearing people say that the decision would damage the Court’s legitimacy. I was skeptical of such claims and I was right. The Court’s approval rating was the same in June 2001, six months after the decision, as it had been in September 2000, three months before the ruling. It had gone down among Democrats and up among Republicans. It is why I strongly disagree with those who believe that Chief Justice John Roberts changed his vote to uphold the individual mandate in the Affordable Care Act case so as to preserve the Court’s credibility. He knew that whatever the Court did would please about half the country and disappoint about half the country.

Go here for a 2014 video interview with Dean Chemerinsky discussing his new book.

Question: You are critical of the Court’s unanimous ruling in Hui v. Castaneda (2010). There the Court, per Justice Sonia Sotomayor, held that public health service officers and employees could not be sued for Bivens actions for violating citizens’ constitutional rights if the violation was committed in the course of their government duties. The plaintiff can only sue the federal government, not the employees. There were no separate opinions in the case. Given the vote, how do you explain your claim that the Court got it wrong? Bias? Poorly argued? The law clerks’ fault? Or what?

Francisco Castaneda testifying before Congress

Francisco Castaneda testifying before Congress, 2007

Chemerinsky: In Hui v. Castañeda, a prisoner had a lesion on his penis. Francisco Castañeda was suffering enormously and the symptoms got worse and worse. But still the public health service workers refused to let him see a doctor. By the time they let him see a doctor the cancer had spread all over his body. His penis was amputated, but he died a short time later. It was egregious deliberate indifference. But the Court unanimously ruled that the existence of a statute protecting public health workers from suit barred a constitutional claim. This seems wrong: a statute should not bar a constitutional claim.

Why did the Court come to this conclusion? I think this case reflects a much larger trend of the Supreme Court favoring the immunity of government and government officers over remedies for injured individuals. It is reflected in the expansion of sovereign immunity, the growth of absolute and qualified immunity, and the evisceration of Bivens suits.

Go here to read Francisco Castañeda’s testimony before Congress, Oct. 4, 2007; see also Gabriel Eber, “Remembering Francisco Castañeda,” ACLU website, May 5, 2010

Question: You write of the need for scholars to look “cumulatively at the Court’s decisions” re race, civil liberties, economic regulations, school desegregation, effective counsel, labor law, consumer protection, and governmental immunity. Is it really possible to look at the Court through such a broad lens? And if so, what might it tell us that we already do not know?

Chemerinsky: My concern is that the narrower the focus, the easier it is to make excuses for the Court. Any institution will make decisions that we later regard as mistakes. Virtually everyone today believes that Dred Scott (1856) and Plessy v. Ferguson (1896) and Korematsu v. United States (1944) were tragically wrong. But focusing on each creates the view that they are isolated errors. If they are seen as part of a larger pattern, it becomes clearer that there is a strong case against the Supreme Court. It then becomes clear that there is a need for reforms.

Absent extraordinary circumstances, the docket for October Term 2014 is now complete, and it has the potential to be one of the most momentous in history. – Erwin Chemerinsky (Jan. 27, 2015)

Question: You find merit in Texas Governor Rick Perry’s idea for a proposed constitutional amendment limiting each Justice to an 18-year term. Think of it, had such a rule been in place, Holmes could not have written his is dissent in Gitlow v. New York (1925), Brennan would not have authored his majority opinion in Texas v. Johnson (1989), and we would never have read Justice Ginsburg’s dissent in Burwell v. Hobby Lobby (2014). Two questions: (1) Does that concern you? And (2) Isn’t it always an iffy matter to push for constitutional amendments concerning the Court?

Chemerinsky: (1) Yes, of course, it concerns me in that those are very important opinions and it is entirely speculative as to whether their replacements would have written similar opinions. It is tempting to respond to your examples with opinions of say Justices Antonin Scalia and Clarence Thomas that I find deeply objectionable and point out that with 18 year term limits that they would no longer be on the Court. But I think that kind of reasoning misses the point I was trying to make.

Life expectancy is thankfully much longer today than in 1787. Clarence Thomas was 43 when he was confirmed for the Court in 1991. John Roberts and Elena Kagan were 50 when they were confirmed. If they each remain until they are 90 years old, the age at which Justice John Paul Stevens retired, they will be on the bench for 47, 43, and 43 years respectively. That is too much power held by a person for too long a period of time. Also, too much depends on the accident of history as to when vacancies occur. Richard Nixon had four vacancies on the Court to fill in his first two years as President, Jimmy Carter had none in his four years in the White House.

(2) A constitutional amendment is always “iffy” in terms if likelihood. Indeed, any constitutional amendment proposal is highly unlikely to succeed. But this is one liberals and conservatives both support. My sense, from having spoken about this many times, is that it has widespread public support.

imagesQuestion: As you see it, is much of the law announced in the Court’s more controversial opinions anything more than sophisticated forms of rank politics or knee-jerk ideology?

Chemerinsky: The Constitution is written in broad language. What is “cruel and unusual” punishment or “due process of law” or “equal protection of the laws”? Constitutional law constantly requires balancing of competing interests.   What is “reasonable”? What is a “legitimate” or an “important” or a “compelling” government interest? How a justice answers these questions is inevitably a function of his or her values and views and life experiences. A key point I want to make is that we should stop pretending otherwise.

Is it “rank politics”? No. Unlike legislators, their decisions are not a result of campaign contributions or lobbying or vote trading. Is it “knee-jerk” ideology? Certainly the decisions are a result of the ideology of the justices. Is it “knee-jerk”? I think we’d say that only when we disagree. The decisions we agree with are carefully reasoned and thoughtful and the ones we disagree with are “activist” and “knee-jerk.” My point is that we should stop pretending that there is such a thing as “objective” constitutional law and the justices are just applying the law. They are making value choices and those choices are a reflection of who they are and what they believe.

Question: Two years ago, Judge Richard Posner declared: “I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically . . . it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political.” What do you make of that assessment?

Chemerinsky: I am not sure what the word “political” means here. It is a court. It hears and decides cases and writes opinions. The Justices are deciding cases based on their best view of the law and the facts. The key word is “political.” If political is meant to refer to the lobbying, contributing, and vote trading that occurs all the time in Congress and with the President, then no, it is not political. If by political it means that decisions are based on ideology, of course that is true. But it also is true of Judge Posner and his court and all courts.

Question: Your words: “It is time to get past the façade of the marble columns and the mystique of justices who appear in robes from beyond heavy curtains.” Do you think there are any risks in abandoning this mystique in favor of the brutal realities of realism?

Chemerinsky: No. I generally believe in candor and seeing things for what they are.   I think seeing beyond the mystique of the Court will make it far more likely that there will be needed reforms.

Dean Chemerinsky arguing before 9th Circuit panel in Arce v. Huppenthal (C-SPAN video, Jan. 12, 2015)

Question: Though you devote a good dollop of criticism to the Citizens United case, you say little or nothing about Buckley v. Valeo (1976), a First Amendment case successfully argued by the ACLU with a per curiam opinion much influenced by Justice Brennan. Where do you come down on Buckley?

Chemerinsky: I think that Buckley v. Valeo was wrong on many levels. First, I disagree that spending money is itself speech. It is conduct that communicates a message. It thus should be subjected to intermediate rather than strict scrutiny. Spending money in elections facilitates speech, but that does not make it speech. Education facilitates speech, but that does not mean that there is a right to education (though there should be). Second, I think that the distinction between contributions and expenditures, which is at the core of Buckley, is misguided. Both contributions and expenditures risk corruption and the appearance of corruption and great inequalities in the election system.

I focused on Citizens United rather than Buckley because it was a chapter mostly about the Roberts Court. Also, even under the Buckley framework, Citizens United was a terribly wrong decision.

I am a member of the ACLU and have been very involved with it throughout my career. I strongly disagree with its position on campaign finance.

Question: Now onto Citizens United. Here is a recent statement by Floyd Abrams: “What threatens democracy is any law, such as that at issue in Citizens United, that makes criminal the showing on television of a documentary-like movie denouncing a candidate for the presidency of the nation simply because the organization that prepared it had received some corporate grants. The film at issue in Citizens United Hillary: The Movie — was, in my view, grotesquely unfair to then Senator Clinton. But that sort of political speech is precisely what the First Amendment most obviously protects.”

How would you respond to Mr. Abrams’ point?

Chemerinsky: I agree with Mr. Abrams that there was a First Amendment right to make and show Hillary: The Movie. But I think that misses the point. Corporations had the right to spend money before Citizens United. They could create political action committees to do so. Thus, the question in Citizens United was not about the ability to show Hillary: The Movie or even for corporations to spend money to do so. The question was whether corporations should be able to spend unlimited amounts out of their corporate treasuries to get candidates elected or defeated.

Prediction in Gay Marriage Case

Ultimately, the Justices need to decide if they want to write the next Plessy v. Ferguson or the next Brown v. Board of Education. Looked at this way, it is clear what the Court will do and it is easy to predict by that by the end of June 2015, the Court will rule that same-sex couples have the right to marry in all 50 states.

[B]y a 6-3 vote, the Court will hold that laws that prohibit marriage equality deny equal protection to gays and lesbians. . . . [The majority will consist of Justice Anthony Kennedy plus the Court’s four liberals.]   I also think it is likely that Chief Justice John Roberts will join them and be a sixth vote for a constitutional right to marriage equality. — Erwin Chemerinsky, Jan. 22, 2015

Question: Last Term the Court rendered a 9-0 judgment in an abortion clinic protest case, McCullen v. Coakley (2014). After it came down, you tagged the judgment “deeply disturbing.” Notably, none of the women Justices elected to write a separate opinion. Two questions: (1) Did the Court get it right? And (2) why do you suppose that the Court’s women Justices opted to remain silent?

Chemerinsky: (1) I think the Court was wrong in McCullen v. Coakley. I think buffer zones are a crucial way of balancing speech on the one hand and privacy/safety interests on the other. Women using reproductive health care facilities and those who work in them need protection from verbal and physical harassment and abuse. The Court failed to recognize this. The Court’s decision leads to arbitrary line drawing. If a 35 foot buffer zone is not narrowly tailored, what about 20 or 10 feet as a buffer zone?

(2) I fear that the Justices saw the issue as an abstract question. I don’t think they focused enough on the experience of the patients and doctors using and working in the facilities and the need to provide them protection from harassment and abuse.

Dean Chemerinsky & Dennis Apel

Dean Chemerinsky & John Dennis Apel

Question: You argued United States v. Apel (2013). Valiant as your effort was, you could not garner a single vote. Though you mention the Apel case in passing, you really did not offer any specific commentary on it in your book. (1) How then, if at all, does the Court’s judgment in Apel fit into your thesis in The Case Against the Supreme Court? And (2) How do you explain why so many of the Justices vote against your position?

Chemerinsky: (1) I completed the book after the argument, but before the decision in Apel. The case involved the right to protest on a public area of a military base. The Supreme Court did not reach the First Amendment question, deciding a statutory question instead. I obviously was disappointed by the Court’s decision (I lost 9-0 on the statutory question), but am hopeful that they will take the case on the First Amendment question and that I will prevail.

(2) Justices Ruth Bader Ginsburg and Sonia Sotomayor said clearly that Apel should win on First Amendment grounds. I have a petition for certiorari pending now on that issue. I remain hopeful.

Question: As you know, much of the drafting of the Court’s opinions is done by law clerks. How, if at all, does that fact figure into your assessment of the Court?

Chemerinsky: From all I know, I think that the amount of drafting by law clerks varies tremendously by Justice and even by case. But I believe that the Justices control the process and the decisions and opinions are theirs. I do not blame the law clerks for the Court’s errors. The Justices are deciding the cases.

Question: What do you think of the idea of revealing the names of the Justices who voted to grant cert in a case? Do you see any meaningful merit in such an idea?

Chemerinsky: Absolutely, the names of the Justices should be revealed as to votes on certiorari. The decision to deny certiorari is often the final decision in a case. We should know who voted and also why. There is no justification for keeping this secret.

Question: Much ink has been written about Justice Clarence Thomas’ silence during oral arguments. Do you think any of the Justices talk too much during oral arguments? If so, dare you tell us which ones?

Chemerinsky: I believe that Justice Thomas shows disrespect for the process by never asking questions in oral arguments. I think he last asked a question in 2006.  I understand that some Justices are more talkative and some quieter, like the students in my classes. But it is inconceivable that not once since 2006 there has been an instance where Justice Thomas did not have a question and would not have benefited from a question to counsel.

My concern with oral argument is not that some Justices talk too much, but that the Justices do not have enough respect for each other’s questions. Far too often there is a question and before the lawyer can say more than a sentence or two, there is another question from a different Justice about something else. The Justices need to give counsel a chance to briefly answer a question before asking the next one.

Justice Antonin Scalia

Justice Antonin Scalia

Question: You write: “I believe the increasing use of sarcasm and even ridicule in judicial opinions is undesirable.” In that regard, you single out Justice Antonin Scalia. Are any other Justices on the Roberts Court also guilty of this? If so, which ones?

Chemerinsky: My colleague, Rick Hasen, has just written a piece about sarcasm by Justices (which Adam Liptak reported on in the New York Times). He used a measure to show that Justice Scalia is by far the most sarcastic Justice. Other Justices, too, from time to time use sarcasm. But none nearly as much as Justice Scalia. My objection is not ideological I just believe such sarcasm has no place in judicial opinions and sets a terrible example for law students and lawyers.

Question: Writing as an academic, how does your view of the Court affect the way you might argue a case as an advocate before the Court?

Chemerinsky: My view of the Court is that it is nine individuals who are very smart and work very hard. It also is that the Justices can do whatever they want. It is not enough to show the Justices the law and precedent, it also is important to explain why they should come to a particular result.

Question: Re the Senate confirmation process, you argue that “the Senate should insist, as a condition of confirmation, that the nominee answer detailed questions about his or her views on important constitutional questions.” Two questions: (1) How does that differ from asking how a nominee would vote, for example, in an abortion case, or a death penalty case, or a search and seizure case, or separation of powers case? Would your reform proposal allow for that? And (2) if your proposed reform were to be adopted, do you think it would make the confirmation process all the more political?

If your proposed reform were to be adopted, do you think it would make the confirmation process all the more political?

Chemerinsky: (1) I do not believe that nominees should be asked how they would vote in a specific case. That is a function of the facts, the briefing and the arguments. But they should be asked their views on the important issues. We know how Justices Scalia and Ginsburg will vote on whether Roe v. Wade (1973)  should be overruled. That does not require them to be recused. The views of a Justice very much affect, if not determine, how he or she will vote. We should know them before confirmation.

(2) It should be a political process. The appointments and confirmation process is the most important political check on the judiciary.

Question: Have you given any thought as to how the positions advanced in your book might be incorporated into constitutional law as taught, both in the classroom and in casebooks?

imagesChemerinsky: I have been teaching constitutional law for 35 years. I am the author of a casebook and a treatise on constitutional law (and a treatise on federal jurisdiction and co-author of a casebook on criminal procedure). So yes, I have thought a lot about this. In the classroom, I want my students to understand the decisions and the doctrines, but to see them as a product of human beings making value choices. I want my casebooks and treatises to be as ideological neutral as possible, presenting the law and the underlying policy questions as clearly as I can.

Question: Are you working on a new book? If so, what can you tell us about it?

Chemerinsky: Yes. I have signed a contract with Yale University Press to write a book, tentatively titled, Enforcing the Constitution: Defining the Role of the Federal Courts. I want to set out a vision of the role of the federal courts in the American system of government and to apply that vision to a number of doctrinal areas such as standing, political question, sovereign immunity, class actions, abstention, and habeas corpus.

The thesis is that the central role of the federal courts is to enforce the Constitution and that these doctrines should facilitate this, but too often now don’t. The manuscript is due this fall. I also am thrilled that I just finished the new edition of my constitutional law treatise, Constitutional Law: Principles and Policies, and it will be out in June.

Ginsburg Should Have Retired Last Term 

Justice Ruth Bader Ginsburg should retire from the Supreme Court after the completion of the current term in June. She turned 81 on Saturday and by all accounts she is healthy and physically and mentally able to continue. But only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values.Erwin Chemerinsky, March 15, 2014

Question: One final question: where would you like to see your career go in the future? Put another way, what remains to be done in the Chemerinsky career workshop?

Chemerinsky: I have had an incredibly blessed and fortunate career. I hope to teach and write and handle appellate cases for many years to come. I love teaching as much as when I began in 1980, and every year I teach a full load even as a dean. I love writing, whether in op-eds or law review articles or books. I love being an appellate lawyer. Being the founding dean of a law school has been an amazing experience. I only can wish for my children and my students that they can love their work as much as I do. I just hope I can continue doing it for a long time to come.

Ron, thank you so very much!

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