BERKELEY'S NEWS • SEPTEMBER 25, 2022

Berkeley Law Dean Erwin Chemerinsky discusses Supreme Court

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BERKELEY LAW | COURTESY

Berkeley Law Dean Erwin Chemerinsky is concerned with the Supreme Court's last term, specifically with regards to its inability to make "value-neutral" rulings.

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SEPTEMBER 20, 2022

Berkeley Law Dean Erwin Chemerinsky spoke about the Supreme Court in a livestreamed Campus Conversations event Monday.

Campus spokesperson Dan Mogulof interviewed Chemerinsky on the court’s last term, in which it handed down several momentous decisions pertaining to privacy, religion, government regulation, firearms, affirmative action and the integrity of the democratic process.

“The week between June 23 and June 30 was one of the most momentous weeks in American history,” Chemerinsky said at the event. “(The Supreme Court) changed the law dramatically and moved it very far in a rightward direction.”

Chemerinsky said three of the current justices subscribe to originalism, the view that the meaning of a constitutional provision is fixed when it is adopted, and it can be changed only by a constitutional amendment.

Interracial marriage and the right to use and purchase contraceptives are examples of cases where the court should not have authority under an originalist perspective, Chemerinsky added.

“It makes no sense to say that the Constitution today means just that which was thought for an agrarian slave society in 1787 or 1791,” Chemerinsky said at the event.

The conversation then pivoted to the Dobbs v. Jackson ruling, which overturned Roe v. Wade and held that the Constitution does not protect the right to abortion.

Chemerinsky said with more than half of states restricting abortion, the practical effect of the Dobbs ruling is that low-income women in these states will face a difficult choice between an unplanned pregnancy or unsafe illegal abortion.

“We don’t leave fundamental rights to the political process,” Chemerinsky said at the event. “Part of what makes Dobbs so startling is it’s one of the rare times in American history when the Supreme Court has ever taken away a right.”

In regards to administrative law and the case of West Virginia v. Environmental Protection Agency, Chemerinsky said the court ruled that Congress must provide clear direction to an administrative agency before they can act on a major question of economic or political significance.

Afterwards, the discussion turned to two cases on religious freedoms, where the court ruled that if the government gives money to secular private schools, it must also do so for religious ones in a case in Maine.

Chemerinsky said this case is particularly dramatic because the majority opinion ignores the Establishment Clause and rests solely on free exercise of religion, with “no notion of a wall separating church and state.”

Chemerinsky noted the case had implications for California charter schools, which must be secular, a policy that may now be challenged.

The second case, Kennedy v. Bremerton School District, was notable as it opened the door to prayer being allowed again in public schools and because it was a rare instance in which Supreme Court justices disagreed on the facts of a case rather than their interpretations of the law, according to Chemerinsky.

Chemerinsky then discussed gun rights, where the ruling in the New York State Rifle and Pistol Association v. Bruen case could invite a slew of problems for similar gun legislation in California and other states.

“Both liberals and conservatives at times want to defer to the political process and at times they want the courts to overrule the political process,” Chemerinsky said at the event. “There is no consistency, it’s all about what one believes the Constitution should be protecting.”

Chemerinsky said while the court is not a political or corrupt body, it is not “value-neutral” and has swung both left and right.

Next, the discussion moved to the court’s next term, in which they will rule on affirmative action. Chemerinsky said he expects the court to rule against the policy, which would bring the rest of the country in line with California.

Finally, Chemerinsky discussed the Independent State Legislature Theory. Chemerinsky stressed he hopes the Supreme Court will reject this theory and allow state courts to enforce state constitutions clauses about the electoral process.

“Imagine that the legislature says, ‘(it) doesn’t matter what the popular vote was, we are giving our electors to the Republican candidate,’ and that decides an electoral college,” Chemerinsky said at the event. “If that happens our country would come apart.”

Contact Ratul Mangal at 

LAST UPDATED

SEPTEMBER 21, 2022


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