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Constitutional Scholar Chemerinsky 10/31/14  10/30/14 9:55:33 AM Printer Friendly VersionPrinter Friendly Version

Constitutional Scholar Chemerinsky
Makes a Case Against Supreme Court

By Lorraine Boyd
The Daily Record

This year’s theme for the Nebraska State Bar Association’s annual meeting was “Our Constitution: Roots of Liberty.” So, it was only fitting that the keynote speaker was Erwin Chemerinsky, founding Dean of the University of California, Irvine School of Law and a preeminent constitutional law scholar.
He addressed a packed ballroom just days after the release of his latest book, The Case Against the Supreme Court.
Holding hundreds of lawyers spellbound for well over an hour, he systematically analyzed the decade of Chief Justice John Roberts’ Court, as well as the entire history of the high court.
The scholar, professor and practicing appellate attorney contends that, despite the general public’s belief that the Supreme Court strives to be objective, the Court is anything but. “The Court is made up of fallible men and women who inevitably base decisions on their own biases and prejudices.”

His book examines the makeup and decision-making of the Court throughout history. In it, he offers several solutions that he contends would make the Supreme Court more effective and more closely aligned with what he believes the Founding Fathers had in mind when they created it.
To illustrate his contention that the Court’s decisions reflect their personal beliefs and ideology, he chose several cases to discuss at the annual meeting.
It is worth noting that throughout his talk, Chemerinsky never referred to any notes and never faltered while citing “chapter and verse” of many high court decisions. Members of the audience were abuzz after the presentation about the speaker’s mastery of his subject.
He divided his talk into seven “themes.”
First, he said, is that “Far fewer cases are being decided now, the smallest number in my lifetime.” The smaller docket began with the Rehnquist Court. A look at the last three years shows that the court took up 65, 73 and 68 cases respectively, he noted.
“Justice Roberts wrote [only] 12 opinions last year; Kennedy and Kagan wrote 10 opinions each. … More major issues are going longer before being resolved,” he noted.
Second, while it is known as the Roberts Court, “this really is the Anthony Kennedy Court,” he said, “and I think I can express this to you both qualitatively and quantitatively.
“For each of the past nine years, Kennedy was the justice in the majority more than any other on the Court. Last year, Kennedy was in the majority 94 percent of time.” And each term he was in the majority in more 5-4 decisions – usually the most important and most controversial – than any other justice. In fact, “last year, Justice Kennedy was in the majority in 100 percent of the 5-4 cases.”
Chemerinsky chose the “five most important cases” of the last nine years to discuss.
1. Gonzales v. Carhart, in which the Supreme Court upheld the federal partial-birth abortion ban act. It was the first time, he noted, that a fetus was legally referred to as an “unborn child.” Justice Kennedy wrote the opinion.
2. District of Columbia v. Heller, which for the first time in American history applied the Second Amendment to guns in the home rather than guns for militia, a stance which had been in effect from 1791 to 2008.
3. Decided during the Obama  era, the case of National Federation of Independent Business v. Sebelius, involved a patient protection in the Affordable Care Act, a 5-4 decision that upheld the individual mandate. Chief Justice Roberts wrote the opinion.
4. Citizens United v. Federal Election Commission, another 5-4 decision with Kennedy the deciding vote, opened the doors to unlimited spending in elections by corporations (expanding coverage from non-profit to for-profit), which were deemed to be “persons” under the law.
5. United States. v. Windsor in 2013, another 5-4 Kennedy decision, which held unconstitutional Section 3 (holding that marriage is defined as between a man and a woman) of the Defense of Marriage Act (DOMA).
“What’s interesting about these five cases, is some came out the way conservatives would have preferred; some came out the way liberals would have preferred.”
But in four of the five cases, he emphasized, Justice Kennedy was in the majority. “So if you want to understand this court, you need to think of it as the Anthony Kennedy Court.
“I got to argue a case in the Supreme Court last term … and I give away no secrets when I tell you that my brief was a shameless attempt to pander to Anthony Kennedy!”
Third, the Roberts Court has been consistently against Civil Rights plaintiffs.
“Let me focus on the Supreme Court and race. There were a lot of important cases [in this era].”  He highlighted several cases, many dealing with segregation, that proved his point.
He then cited Ledbetter v. Goodyear Tire, in which the Supreme Court, in a 5-4 decision, limited the damages the plaintiff could recover. Congress had to pass a statute to overturn the decision.
“The Roberts Court has consistently ruled against employees.”
Fourth,  “The Court is generally thin in pro-speech, except when the institutional interests of government are involved.”
“Take Snyder v. Phelps for example." The Westboro Baptist Church in Topeka, Ks. delivers a “vile message,” protesting at the funerals of slain soldiers. Snyder, the father of a fallen soldier, sued for intentional infliction of emotional distress. The federal court had awarded $10 million in damages, but the Supreme Court overturned the decision. The Supreme Court ruled 8-1 that the church was protected by the First Amendment.
In Brown v. Entertainment Merchants Association, the Court ruled that violent video games qualify for First Amendment protection.
“One of the most influential cases in the Roberts Court was Garcetti v. Ceballos,” Chemerinsky asserted. Ceballos, a deputy district attorney, said he had been retaliated against after writing a memo questioning statements on a warrant. “The Supreme Court ruled there is no First Amendment protection for the speech of government employees when on the job in the scope of their duties.”
In other cases as well, the Supreme Court offered no protection under the First Amendment against such reprisals, whether in the case of a student displaying a banner at a school-sponsored event, or prison inmates being denied printed material.
“So when you think about the Roberts Court and free speech, there are many instances when free speech is protected, but not when the institutional interests of government are involved,” Chemerinsky said.
Fifth, “This is the most pro organized-religion Court ever … consistently ruling in favor of religion.”
He said you saw it in Town of Greece v. Galloway, concerning (nearly all Christian) prayer before town meetings. And again in a case close to home, in Marsh v. Chambers, which concerned prayer before each Nebraska Legislative session by the state’s chaplain. Both were supported by the Court.
Burwell v. Hobby Lobby this past June, which received a lot of media attention, was another such case. It concerned the requirement that the company’s preventive insurance include contraception.
In its June 30 decision the Court, by a five-to-four vote, gave businesses formed as “closely-held corporations” a new exemption from the requirement that most businesses must provide a variety of pregnancy-preventive health care coverage for their female workers, if the firm’s owners have religious objections to those services. It said that such corporations are protected as persons.
Chemerinsky said this case would be “so important in the future.”
Corporations can claim a religious exemption. Did you know, he asked, that 90 percent of all businesses in America are closely-held corporations? He jokingly asked if companies whose owners are Christian Scientists can deny all forms of health insurance. “If so, then many companies may discover they have been Christian Scientists all along.”
Sixth, he said that generally this has been a pro-police Court. He cited cases such as Salinas v. Texas (silence before arrest can be used against you if you don’t invoke your right to remain silent).
One of the most important cases regarding the Fourth Amendment was Maryland v. King.
The collection of King’s DNA after arrest on an assault charge resulted in solving an unsolved case of rape, for which he was convicted.  The Court held that King’s right to privacy was not violated.
In June 2014, the most important Fourt Amendment case – Riley v. California – was decided. David L. Riley was pulled over for a traffic violation. He had no driver’s license, his car was impounded and in a search of his car, weapons were recovered. Officers also found in his pocket a smart phone that had pictures of gang activity on it. (Based in part on evidence found on his cell phone, Riley was subsequently charged in connection with a shooting and convicted.) The Supreme Court unanimously held that the police cannot search a suspect’s phone upon arrest without a warrant or exigent circumstances.
“I think this is the most important Supreme Court case ever  about informational privacy [which will one day encompass such things as the Web and the Cloud]. I predict this case will go far beyond the Fourth Amendment.
“I have long had a predictive principle of Supreme Court decisions,” Chemerinsky said. “If justices can imagine it happening to them, then it violates the rights.”  
He also touched on the Court’s limiting of class action law suits. “Class action lawsuits have a terrorizing effect on businesses.”
“Arbitration clauses in contracts are increasingly ridiculous.” He noted that he once opened a package was informed therein that he could not sue the company and must agree to arbitration. His answer to that was to send the company an envelope which, when opened, contained the message that “by opening this envelope, the company agrees that I can sue them in court.” That met with raucous laughter and applause.
The seventh and final theme: Access is very much closed off to the judiciary. The Court receives the least media attention. And they serve for life. They will be dealing with things that were not even invented yet when they were sworn in, things like the Internet.
In his book he says that, for over two centuries, the Court has been far more likely to uphold government abuses of power than to stop them. The Roberts Court’s notorious decisions – preventing employment discrimination and consumer class actions against the largest corporations, denying remedies to those unjustly convicted and detailed, overturning campaign finance reforms – are hardly recent exceptions.
In short, Chemerinsky concluded that unless changes are made, in his opinion, the Supreme Court will continue to be a failure.
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