SCOTUSblog interview: Erwin Chemerinsky’s The Conservative Assault on the Constitution

By Adam Schlossman
on Dec 14, 2010 at 10:48 am

Last week, SCOTUSblog published a podcast interview with Erwin Chemerinsky, the founding Dean of UC Irvine Law School and author of The Conservative Assault on the Constitution.  Here, Dean Chemerinsky kindly agreed to answer a series of follow-up questions.

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Q. Which area(s) of the law and/or which cases are most indicative of the Court’s shift to the right and, along those same lines, what areas do you predict might be most affected five, ten, and twenty years down the road?

—In the book, I focus on six areas:  education, presidential power, separation of church and state, rights of criminal defendants, individual liberties, and access to the courts.  I believe that in each of these areas there has been a significant change in the law in a conservative direction.   As for the future, assuming that the conservative majority of Roberts, Scalia, Kennedy, Thomas, and Alito remains for the next decade, I expect that there will be significant changes in a conservative direction with regard to the Establishment Clause of the First Amendment (a significant lessening of any notion of separation of church and state), affirmative action, and campaign finance.   In the longer term, it all depends on what President fills which vacancies.

Q. Throughout the book, you provide compelling personal accounts of your experiences representing clients pro bono in front of the Supreme Court.  To what extent have these experiences affected you as an advocate, scholar, and in your life more generally?

—Being an appellate lawyer has been a key part of my professional experience over the last twenty-five years.   Most of my arguments have been in courts of appeals, only a handful in the United States Supreme Court.   But this experience has greatly influenced my teaching, my scholarship, and my life.   I think that I am far more effective as a teacher from having also been a lawyer.   Undoubtedly, much of what I have written as a scholar has been influenced by the cases I have handled.   My perspective of the law, and how much depends on the identity of the judges, is a product of the many cases I have been involved with.  And it also has had a profound effect on my life.   I am haunted by the fact that my loss in Lockyer v. Andrade means that my client will be in prison for shoplifting until 2046, when he is eighty-seven years old.   I have had the experience of having had a client executed, which remains enormously disturbing.

Q. Much has been made over President Obama’s use of the word “empathy” in referring to traits he looks for in Supreme Court candidates.  In your opinion, what role should empathy play in a Supreme Court Justice’s evaluation of legal arguments?

—I thought that this dispute was silly.  The opposite of a person with empathy is a sociopath.  Surely we do not want sociopaths as judges.  Conservatives attacked President Obama for saying this by arguing that judges should decide based on the law and not emotions.  Of course, judges should decide cases based on the law.   However, in constitutional law, justices (and judges) often have great discretion.   Under the Fourth Amendment, there constantly must be decisions about what is “reasonable.”  Throughout constitutional law, there must be judgments about what is a “compelling” or an “important” or a “legitimate” government interest.   In making such judgments, Justices and judges should consider the impact of their rulings on people’s lives.  That is what empathy is about and, of course, it should be part of judicial decision-making.

Q. You write in your book that “it is clear that conservatives often abandon the original-meaning approach when it does not serve their ideological purposes.”   Can you please elaborate –  perhaps by providing an example or two?

—Affirmative action.   I am skeptical that we can ever really know the original intent or meaning for a constitutional provision.   But if ever it is clear, it is that the drafters of the equal protection clause of the Fourteenth Amendment intended to allow race-conscious programs of the sort that today we call affirmative action.  The Congress that ratified the Fourteenth Amendment adopted many such programs.  Yet originalist Justices, like Antonin Scalia and Clarence Thomas, pay no attention to this history in condemning affirmative action.   Another example is campaign finance.   There is absolutely no indication that the drafters of the First Amendment intended to protect the speech of corporations (that did not occur for the first time until 1978) or spending in election campaigns.  But conservative Justices nonetheless find a First Amendment right for corporations to engage in unlimited expenditures in campaigns.

Q. What evidence do you have that the conservatives are determined to do some kind of cultural or societal harm to constitutional understanding?

—I don’t believe that conservatives are determined to do some kind of cultural or societal harm.  I do believe that the decisions of conservatives on the Supreme Court have done harm, such as in the areas discussed in the book, in helping to foster separate and unequal schools, in contributing to the growth of unchecked presidential power, in lessening the wall separating church and state, in decreasing the rights of criminal suspects and defendants, in failing to expand individual liberties, and in closing the courthouse doors.

Q. How can liberal advocates get their message across without being dismissed as outside the mainstream?

—I think that the mainstream in America is moderate.   Justices like John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito are far more conservative than the mainstream in the United States.  Also, I believe that history has shown the constant move towards the liberal vision of greater freedom and equality.   Liberals need to explain how their vision is desirable and how it is very much in accord with the mainstream of American thought.

Q. Within the context of the “conservative assault” you discuss in the book, can you please define the terms “living constitution” and “strict constructionist”?

—Everyone is a strict constructionist in that everyone believes that the text of the Constitution should be followed where it is clear.   But the phrase “strict constructionist” was coined by Richard Nixon to refer to something more ideological:  Justices who followed the conservative approach to interpreting constitutional provisions.   Interestingly, conservatives are not strict constructionists in interpreting the Second Amendment.   There conservatives read the Second Amendment as if it simply said “the right of the people to keep and bear arms shall not be infringed.”  They ignore the first half of the Amendment which speaks of the right existing for the purpose of having a well-regulated militia.

A belief in a “living Constitution” rejects the notion that the meaning of a constitutional provision is the same in 2011 as when it was adopted.   A living Constitution says that in interpreting the Constitution, Justices and judges should consider history, tradition, precedent, and modern needs.   There always has been a living Constitution and hopefully always will be.  The opposite of a living Constitution is a dead Constitution and no society can be governed under that.

Q. Can you discuss your decision to use, both in the title and throughout the book, the phrase “conservative assault”?

—I struggled with the title for the book.   I want it to convey a concerted effort by conservatives over the last several decades to change long-standing principles of constitutional law.   It is a book written for a general audience and I wanted a title that was not too academic.   I do not want the book to be read as a polemic and I worried about the title in this regard.   Ultimately, though, I chose the title to express the extent to which I believe that conservatives have sought to change basic principles of constitutional law.

Q. From what you have observed, can you envision Justices Kagan and/or Sotomayor as leaders of the liberal wing of the Court?

—It is far too soon to have a sense of Elena Kagan’s judicial philosophy.  I think we know less about her judicial ideology than any nominee since Sandra Day O’Connor in 1981 since Kagan had never been a judge before and had only a relatively small amount of legal scholarship.  In her first year and a half on the Court, Justice Sotomayor has shown that she well could be the leader of a liberal wing of the Court for decades to come.   Her voting record in her first Term, her magnificent dissent in Berghuis v. Thompkins, her dissents in some recent death penalty cases where certiorari was denied, all are evidence of this.  Also, she is a brilliant and charming person, which could help make her a leader within the Court.