Bench Memos

Dean Chemerinsky’s Critique of the Roberts Court

 I believe that it is particularly important that those of us in the legal academy do what we can — even when writing hard-hitting and critical commentary about the Court’s work — to avoid indulging in too-tendentious, misleadingly sound-bitey characterizations of that work. I’m sure I’ve fallen short sometimes. And maybe I’m just kidding myself in thinking that law teachers who also pundit should hold themselves to a higher standard, but there it is. That said, I was disappointed by Dean Erwin Chemerinsky’s op-ed in the Los Angeles Times, “Supreme Court’s conservative majority is making its mark.”  

Chemerinsky is one of the best-known law professors in the country. He is also, of course, a frequent and prolific commentator on things constitutional. People listen to him (and law students — grateful for his Con Law treatise — toast his health regularly). It’s really important then, that he be fair and accurate. 

Now, much of what he says in this piece is accurate. Yes, the “Roberts Court” probably is more “conservative,” in some sense, than, say, the “Warren Court.” But, in other places the piece is, I think, misleading or hyperbolic. Chemerinsky says that the Court has “consistently ruled in favor of corporate power.” I don’t know what that claim really means. Is the complaint that “corporations” often have their arguments sustained by the Court?  If so, why should that bother us? Don’t we need to know more about what the particular cases were about?  What if the Court “rule[s] in favor of corporate power” because Congress has enacted a statute that operates (when correctly understood) in favor of “corporate power”? 

The example he cites — the Citizens United case — is, I understand, controversial (though I think it was correctly decided). But it would take more than this decision (a lot more) to establish a pattern of “ruling in favor of corporate power.” Couldn’t Citizens United just as easily (and, in my view, more accurately) be cited as evidence that the Court has “consistently ruled against government efforts to constrain protected political speech”?

Chemerinsky later writes that the Court has “significantly expanded the power of the government to regulate abortions.” Well, if he has in mind the fact that the Court did what he said the Court should have done in the campaign-finance case –  i.e., deferred to legislatures — and upheld a (very popular) regulation of partial-birth abortions, I guess I’d say it’s hard to see either how this ruling “significantly” expanded the government’s power to regulate abortions (weren’t we told that these abortions are very rare?) or why this ruling is “conservative,” as opposed to moderate and consensus-supporting.

Chemerinsky writes, “It is easy to lose sight of how successful conservatives have been in changing constitutional law.” A reader of the Los Angeles Times might not know, though, that the baseline Dean Chemerinsky is using to measure “change” was, in many instances, itself quite reasonably regarded as reflecting “liberal” success in changing the law.

 – Richard W. Garnett is a professor of law and associate dean at the Notre Dame Law School.

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