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‘Not where we are’: Berkeley Law Dean Erwin Chemerinsky reflects on recent Supreme Court decisions

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Berkeley Law Dean Erwin Chemerinsky sat down with The Daily Californian to reflect on recent rulings of the U.S. Supreme Court.


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JULY 26, 2023

The Daily Californian sat down with Erwin Chemerinsky, dean of Berkeley Law since 2017, in order to gain insight into the recent Supreme Court rulings.

This interview has been edited for length and clarity. 

Q: How would you characterize the Supreme Court today?

A: It is a very conservative court. It is the most conservative court there’s been since the 1930s. There are six conservative justices all appointed by Republican presidents and three liberal justices who are appointed by Democratic presidents.

Q: You mentioned that it has been the most conservative court since the 1930s. Is there anything uniquely different about how conservative this court is compared to that?

A: In recent decades, it was a court that always had a swing justice. It has overall been a conservative court since 1971, after Richard Nixon picked four justices for the court. But there was always a swing justice … Now, it is six staunch conservatives.

Q: Are there any impacts, beyond just the rulings that they turn out, that this conservative court can have? 

A: This conservative court has moved the law substantially to the right and in a very short period of time. It overruled Roe v. Wade a year ago; it ended affirmative action this year. It allows people to violate anti-discrimination laws on account of their beliefs. Those are dramatic changes in the law, and it is all happening very quickly.

Q: How has the role of the court itself changed throughout history? 

A: For most of American history, the Supreme Court has been conservative. The only exception to that was during the Warren court, from 1953 to 1969 … Courts have sometimes been more restrained, giving more weight to precedent. This is a court that is not restrained at all. It does not defer to the other branches of the government … so it is a very activist, conservative court.

Q: What do you think that the role of the Supreme Court should be in American politics and law? 

A: The preeminent role of the Supreme Court is to enforce the Constitution. I think that the Supreme Court has to interpret the words that were written long ago to deal with our modern situation … The court has to take this document written for an agrarian slave society and interpret it in a way that can be adapted for our modern social needs.

Q: Do you see any problems with the current court system that impede the court from embodying that role? 

A: I would like to see term limits for Supreme Court justices. Thankfully life expectancy is a lot longer today than it was in 1787 … Amy Coney Barrett was 48 when she was confirmed, and if she remains in the court until she’s 87, the age Justice Ginsburg died, she’ll be a justice to the year 2059. This is too much power in one person’s hands for too long a period of time. Also, too much depends on the accent of history for when vacancies occur. A statistic that I always found stunning: Donald Trump picked three justices in four years. The prior three Democratic presidents — Carter, Clinton, Obama — served 20 years in the White House and in that time, they picked only four justices.

Q: Do you think the argument of insulating justices from political pressure is a moot point? Or, do you think that there is something to be said for having lifetime terms for that reason? 

A: I think insulating justices from political pressures is a good thing. It is good that our Supreme Court justices and federal judges do not ever come up for electoral review. But we can provide that insulation without life tenure. I favor the 18-year non-renewable terms … We can have the insulation from politics that comes from an 18-year term, but not have life tenure, because of such problems.

Q: Are there any kinds of decisions that you think would speak toward progress for the future? 

A: You know, I would hope that in time, the Supreme Court will do many things in terms of practice in the future. I just do not think they are going to come from this court. I would hope that the court would find rights that it’s rejected — there is no right to education in the Constitution, and there should be. There is no right to abortion in the Constitution anymore, and there should be. And I would hope that the Supreme Court will someday find things like rights to food, shelter and medical care in the Constitution. But that is not where we are.

Q: Can you explain the importance of the fact that these approval ratings are so low, yet they are making decisions for the majority of the people? 

A: The approval ratings of all of the branches of government are low. The question is, what will that mean for the stability and future of government if people have lost faith in the institutions of government? For the Supreme Court, they depend on the other branches to comply with its decisions. Might there be a point at which other branches say no, we are not going to follow what the Supreme Court says, or might Congress try to do things like strip the court’s ability to hear particular cases? So I think that there are real questions about what it will mean in the long term to have a court with such low legitimacy.

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JULY 26, 2023