John Blomster: Welcome to 红桃视频 presented by the 红桃视频. I'm your host, John Blomster, and today we're here with a very special guest, we're speaking with Erwin Chemerinsky, Dean of the University of California, Berkeley, School of Law. Dean Chemerinsky is a prolific constitutional scholar and Supreme Court advocate and is one of the most influential legal academics and lawyers in the country. He's written a number of best-selling books, including his latest work, 鈥淲e the People: A Progressive Reading of the Constitution for the 21st Century,鈥 and he's a leading voice on some of the most important issues of our time. He is here today to discuss the future of the U.S. Supreme Court and what it means for the turning point in American history at which we find ourselves today. So a nice light topic, and we're very excited, so Erwin thank you so much for joining us here.
听Erwin Chemerinsky: A great pleasure to be with you.
JB: So before we dive in 2019 I'd really like to take a step back to kind of set the stage. So, since 2016 and the death of Justice Antonin Scalia, the Supreme Court has gone through some kind of seismic shift in just couple years. Is that feeling accurate and is there some kind of historical precedent that we could draw from on this?
EC: There's no doubt the court has gone through what you call a seismic shift. We鈥檝e replaced Antonin Scalia with somebody just as conservative in Neil Gorsuch, and replaced Justice Anthony Kennedy with somebody who more conservative, Brett Kavanaugh. Now, a couple effects of this: one is there is no longer a swing justice on the court. Since 1969, while Republicans had a majority of the seats on the Supreme Court, there's always been a swing justice: a Lewis Powell, a Sandra Day O鈥機onnor, an Anthony Kennedy, who would go along with the liberal justices on some the most high-profile, controversial areas like abortion, affirmative action, gay and lesbian rights. No longer is there such a swing justice. Now there are five solid conservatives on the court. The other effect is that we've replaced older justices with much younger justices. Neil Gorsuch is 51. Brett Kavanaugh is 53 is likely to be on the court for decades to come.
JB: So Kennedy's retirement raised a lot of questions about the timing. In general, do you think Supreme Court justices are aware of the societal context with the timing of when they choose to serve or not serve? Because there was a lot of criticism around, you know, resigning during the Trump Administration.
EC: The justices are tremendously aware of the context of their service and resignation. Sometimes they have no choice about when to leave the court. Sometimes they die in office. Sometimes they choose and time their resignation so they have a precedent of a similar ideology pick their successor. Sometimes they just choose the time that was right for them and their lives at that moment in time.
JB: So after Scalia's death, President Obama appointed Judge Merrick Garland and that nomination was subsequently blocked by Senate Majority Leader Mitch McConnell. After President Trump was elected, they abolished the filibuster so they can confirm Neil Gorsuch with just 51 votes. So, if these kinds of actions were possible, how come nobody used them before?
EC: Prior to 2016. 24 times in American history, there was a vacancy in the last year of president's term. In 21 of 24 instances, the Senate confirmed the nominee. Three in which the Senate denied confirmation. Never before has the senate said no hearings, no vote. Why wasn't it done before? I think the Constitution assumes high level of good faith on the part of those who govern us. And I think always before the Senate acted in good faith. Here I think that what the Senate did, keeping the seat open for almost a year, was not at all in good faith. In terms of eliminating the filibuster, Democrats eliminated the filibuster for federal district court and Court of Appeals nominations while President Obama was in office. Republicans eliminated it for Supreme Court nominations when President Trump was in office.
JB: Has this established some kind of precedent if these tools are now known to be readily available to the ruling Congressional party? Do you think there'll be pressure from constituents and other outside forces to use them in the future?
EC: I think so long as the president and the Senate are of the same political party, the president is going to be able to get anyone the president wants through with the rarest of exceptions. I think when the President and the Senate are of different political parties, it鈥檚 not clear that the President will get anyone through at least until there's a change in these deeply polarized times. I think, at the very least, the blocking of Merrick Garland would mean if you had a Republican president and a Democratic Senate, then no one the President would nominate during the last two years of office are confirmed. Probably it'll be the same if it's a Democratic president Republican Senate. I think the interesting question is going to be, if the president and the Senate are pf different political parties, will the Senate even confirm during the first two years of the presidency. What effect of all of this is going to be that you're going to have, I think, much more ideological nominees for the Supreme Court and the Court of Appeals and the district court, so long as the president and the Senate are of the same political party, because no longer does the president have to worry about a filibuster. No longer is the president to worry about placating the minority party. And I think we're already seeing that with Donald Trump who is getting nominees for the Federal Court of Appeals confirm it a record rate. And they are overwhelmingly ideologically very conservative.
JB: And that brings up a very interesting point. This trend of young conservative justices being elected to the Supreme Court. Does that not only reflect a trend of more conservative justices in the lower courts, but also getting younger and, you know, we'll be serving for a longer period of time?
EC: I don't think that the trend towards younger justices is anything new. Clarence Thomas was 43 years old when he was confirmed in 1991. John Roberts, Elena Kagan reached 50, Neil Gorsuch was 49. So I picked both Republican and Democratic nominees for the Supreme Court. But what we are saying is very young individuals being put on federal court of appeals, often very ideologically conservative and defined individuals. I鈥檒l pick an example: A former student of mine when I taught at Duke, Allison Jones Rushing, was just confirmed for the United States Court of Appeals for the Fourth Circuit. She's 37 years old. She has relatively little legal experience, having rarely having argued a case in court, never had first chair at a trial, but she has impeccable credit conservative credentials. She clerked for Judge Gorsuch on the 10th Circuit, Judge [inaudible] on the DC Circuit, Clarence Thomas on the Supreme Court, and I think she's the prototype who President Trump is trying to put on the Federal Court of Appeals: very young, very conservative individuals.
JB: Getting back to the idea of the swing vote or lack thereof, what effects are we seeing already? Is there a specific case that stands out to you where that swing vote really could have been the difference that now is at the whim of an ideological split?
EC: It's important to remember, we're speaking in mid-April of 2019. The court is decided relatively few cases yet. We'll get the decisions down by the end of June, but I think I can point to a couple of examples where it wasn't written opinions, but still rulings by the Supreme Court where the replacement of Anthony Kennedy with Brett Kavanaugh made all the difference. One concern was President Trump's executive order to ban transgender individuals from serving in the military. President Obama issued an executive order, based on a detailed study by the Rand Corporation, to allow transgender individuals to serve. President Obama issued an executive order for the country implemented by a Defense Department directive from March 2019. Three Federal District Courts around the country issued preliminary injunctions saying that Trump鈥檚 Executive Order was likely unconstitutional because it denied equal protection to transgender individuals. The Supreme Court, without waiting for court of appeals decisions on its own lifted the preliminary injunctions. The court doing so, five to four, with Roberts, Thomas, Alito, Gorsuch, Kavanaugh in the majority, Ginsburg, Briar, Sotomayor, Kagan dissenting. Given Anthony Kennedy's record with regard to lesbian gay transgender rights, I think the Kennedy would have come up differently on that. Another example concerns the death penalty. There was a high profile instance in January where an individual was getting put to death, and he was Muslim and he wanted his imam to be with him. And the prison refused to allow it. The Supreme Court five to four allowed the execution to go forward without clergy, even though, Christian individuals could have a minister with them at the time of execution.
JB: One of the things you wrote about earlier this year was about how these three issues that have come before the court in this early going have been the transgender military ban, gun control and free speech as it relates to exercise of religious freedom. Why do you home in on these issues, and what do they show in terms of the trend that the the court is is heading?
EC: I think there are several areas where the replacement of Kennedy with Kavanaugh is going to make all the difference in terms of people's rights, and the ones that you mentioned are examples of these. Others that I point to: I think abortion rights, Affirmative Action, we touched on gay and lesbian rights, punishment in criminal cases. These are places where Kennedy would often side with the liberals, and there's no reason to believe Kavanaugh will do so, and the early indications are Kavanaugh won't do so, which means the change in constitutional law
JB: In the immediate future for 2019, what do you see as one of the most consequential cases that may come before the Supreme Court this year?
EC: I think that we can point to two areas that are on the docket of the Supreme Court this term. One of them concerns partisan gerrymandering. Partisan gerrymandering was with a political party that controls the legislature draws election districts to maximize the seats for that party. It's nothing new. It takes its name Elbridge Gerry, the governor of Massachusetts early in American history. But what's changed are sophisticated computer programs that make it possible to engage in partisan gerrymandering with far more precision than ever before. There are two cases on the docket this term, Rucho v. Common Cause, and Lamone v. Benisek, that involved with the federal courts can continue to hear challenges to partisan gerrymandering, and if so, whether partisan gerrymandering violates the Constitution. The other case involves the census. Its Department of Commerce v. New York. The Department of Commerce is responsible for administering the census. There鈥檚 obviously going to be a census in 2020. The Department of Commerce decided to include a question on the census about whether a person is a citizen. No such question has been asked since 1960, and the concern has always been that would have caused some people to not fill out the census forms. Federal districts have found that this is so arbitrary and irrational as to violate the Federal Ministry Procedures Act that they've also said it's unconstitutional. The Constitution requires to be an accurate enumeration of all persons. Federal district courts have said, asking about citizenship will mean we will never get that accurate count. The Supreme Court will be hearing that case very soon.
JB: There have been a number of proposals recently on ways to reform the court, including term limits, expanding the court to 15 justices, giving Republicans and Democrats equal numbers of appointees. Do any of these ideas actually have traction and in your opinion, are any of those feasible?
EC: Let me take them one at a time, because they're all quite different in terms of expanding the number of鈥 let me start with term limits for just just as your first example. I think the term limits would be a great idea. I would favorite 18-year nonrenewable terms. In part that's because life expectancy thankfully is a lot longer today than it was 1787. Clarence Thomas I mentioned was 53 years old when he was put on the court. Elena Kagan and John Roberts were 50. If they serve until they're 90 years old, the age at which Justice John Paul Stevens retired, they'll be on the court 47-40 years. That鈥檚 too much power in a single person's hands for too long a period of time. Also too much now depends on the accident of history. Richard Nixon had four vacancies to fill in his first two years office, Donald Trump has had two to fill in his first two years in office. But Jimmy Carter had no vacancy in his four years as president. 18-year nonrenewable terms mean a vacancy every two years, all presidents with about the same influence. But I think that would take a constitutional amendment, and that's highly unlikely. You mentioned increasing the size of the Supreme Court. The size of the Supreme Court is set by statute, not the Constitution. Congress could increase the size of the Supreme Court. And I expect if the Democrats would win the presidency and both houses of Congress in 2020, they would consider this, but we鈥檝e had nine justices since 1868 and past attempts to increase the size of the court, so as to change its decisions have been rebuked. President Roosevelt proposed this in 1936, and it was rejected. And so I think it would be very controversial if the Democrats were trying to do this.
JB: So ultimately, and you write about this extensively in your book 鈥淭he Case Against the Supreme Court,鈥 the Supreme Court is supposed to be that third branch of government that impartial referee that protects our society from the whims of the party in power. Do you believe that the court as constructed, given the trends that we've seen both in our society and our politics, do you think that ultimately this court will be able to live up to that foundational charge?
EC: I believe the Supreme Court has often failed throughout American history, often at the most important times. I think of the court鈥檚 dismal history with regard to race. I think of upholding the evacuation of Japanese Americans in West Coast during World War II. I think more recently with decisions with campaign finance, like Citizens United. I have great doubts about the current court and whether it will advance liberty and equality. But I also don't know of an alternative that's better than having a court with this responsibility. I just hope the long term will go back to a court will, as we see throughout the course of American history, mean greater freedom and greater equality.
JB: And in the short term, what can we do as as Americans, what can young lawyers and scholars do, to be a part of that change and to really find that balance for the benefit of all Americans?
EC: I think we're going to need to look elsewhere than the Supreme Court, at least for the years to come. So I think increasingly we're going to need to turn to state constitutions and state courts to advance liberty and I think we need to turn to the political process. We need to remember elections really matter. If Merick Garland were on the court, instead of Neil Gorsuch, so many of the things we've talked about so many other things would have simply come out differently.
JB: Where do you see a spark spark of hope for the future? What is encouraging you right now as we kind of look at鈥?
EC: History. If you look at the course of American history, there's been tremendous advances, with regard to equality and freedom. Though we have an enormous way to go, if you focus on race, sex, or sexual orientation, we鈥檝e still made a great deal of progress. I think of sexual orientation: As recently as 2003, there was no state in the country that allowed gays and lesbians to marry. Within 12 years, every state in the country had allowed gays and lesbians to marry. That鈥檚 enormous progress. I think Dr. Martin Luther King got it right when he said that, 鈥淭he arc of the moral universe is long, it bends towards justice.鈥
JB: Erwin Chemerinsky is Dean of the University of California, Berkeley, School of Law. You can read more of his work regularly, among many other places, in the American Bar Association Journal, and you can take a deeper dive in some of his best-selling books, which include 鈥淔ree Speech on Campus,鈥 鈥淭he Cast Against the Supreme Court,鈥 and his latest, 鈥淲e the People: A Progressive Reading of the Constitution for the 21st Century.鈥 Erwin, it's been an honor. Thank you so much for taking time to join us here.
EC: My great pleasure thank you for having me.
