Chemerinsky on the Supreme Court

Erwin Chemerinsky writes a not-especially honest review of the most recent Supreme Court term. He falsely characterizes the Roberts Court as “a solid conservative voting majority,” notwithstanding the numerous decisions where conservatives were not in the majority, or where the majority decision fell far short of conservative ideals. He characterizes the divided Philip Morris v. Williams decision as “conservative,” even though it was Breyer and Souter in the majority and Scalia and Thomas in the dissent. He complains that conservatives “defer to the government in the face of most claims of individual rights,” but gives no mention of last term’s Wisconsin Right to Life v. Federal Election Commission, where five conservative justices reasserted first amendment rights for political speech over the dissent of Breyer, Souter, Ginsburg, and Stevens, who wanted to preserve the government ban on speech. We’ll ignore that Chemerinsky takes the typical liberal tactic of characterizing legal rules as favoring either businesses or consumers/employees—we all know darn well that many “pro-business” legal rules favor consumers and employees as a group ex ante.

Chemerinsky is entitled to his left-wing opinion, though one might justifiably complain that he’s not entitled to his own facts. But what I certainly object to is the fact that this is being distributed and printed by the State Bar of California in the California Bar Journal, and advertised at the top of the State Bar of California website, since I am required to pay the California Bar hundreds of dollars a year, and have no way of getting a refund for the fishwrap mailed to me every month. This sort of partisan activity strikes me as a highly unethical use of my dues, and I hope someone in California is doing something about it.

(Earlier: Coleman; Bainbridge.)


  • As a recipient of three bars’ slick, dues-financed publications, I would register the same protest. They’re usually carriers of some liberal nonsense that’s always presented as a moderate, authoritative take. On the issues of importance to this blog, for instance, you might see an article on tort reform that’s far from balanced. But who’s got time for that compelled speech lawsuit against the bar?

  • Lordy. I’d have thought that when he left California, the California Bar would have stopped pretending there was any justification for running his tripe. Guess I thought wrong.

  • I like Erwin Chemerinsky and Ted Frank, and I was disappointed by the tone of this blog entry.

    Chief Justice Robert’s goal was to reduce the number of 5-4 decisions from the court. Boy did he miss that one! Justice Breyer has compelling statistics about the radical nature of the current court. Chief Justice Robert’s decision in the school cases left me agape. On paper the Chief Justice is a brilliant guy, but that decision showed stunning ignorance, as would any defense of Williams having a valid claim against tobacco companies.

    Right now the President of the United States or his designee can pick up anybody in the world and imprison him indefinitely in Guantanamo. Surely the three of us can agree that that is wrong.

  • I agreed with the school cases. The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.

    Breyer is perfectly willing to have a 5-4 decision overturn centuries of precedent–as I’ve asked elsewhere, “why is the 5-4 narrowing of the appalling four-year-old McConnell decision more problematic than McConnell’s 5-4 overruling of the two-century-old First Amendment?”

    OT 2006 did not have any Guantanamo decisions, so I’m not sure what relevance problematic Guantanamo decisions have to a discussion of an article about OT 2006.

  • William Nuesslein,

    On your last point… anybody in the world but an American, you mean. And no, I have absolutely no problem with that.

    The President’s PRIMARY job is foreign policy/foreign relations. Dealing for foreign countries and their citizens is his primary job function. If he thinks it’s worth ticking off some country to hold their citizen of interest, well, that’s his prerogative.

    Of course, I may well disagree, and if it’s abused, I may well vote against him in the next election, or even support his impeachment, but the point of the Presidency is that HE is the one exercising that judgement in real time, not committees or groups.

    Looking over his actions and holding him accountable for them AFTER the fact is for committees and groups.

  • Am I to understand that Mr. Nuesslein’s emphatic disagreement with several SCOTUS decisions makes those decisions conservative?

    Maybe he just wasn’t addressing the content of this blog entry…

  • Now you know how I feel about having paid Karl Rove’s salary for the past 6 years.

  • Deoxy, the President’s primary job is to run the country, not to make other nations happy.

  • dc user,

    If we are naming names, I have a Centaur from Massachusetts I would like not to have carried for the last 45.

    Must we toss about gratuitous political comments?