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Erwin Chemerinsky, dean of the law school at the University of California (Berkeley), has an opinion column in the L.A. Times today about the Supreme Court decision in Dobbs overruling Roe and Casey.
As far as I can determine, Chemerinsky rejects the very idea that there is such a thing as constitutional law, at least in any sense that is meaningful to me. He seems to reject the existence of law altogether, except in the sense that “the law” might be defined as whatever the judiciary might decide it to be at a particular moment. This seems a strange view to be held by the dean of one of the most prestigious law schools in the country.
I have an opinion, too. I think that Chemerinsky is fundamentally lacking in integrity. He purports to be engaging in legal scholarship while denying the very existence of law. I submit that this makes him a fraud, even on his own terms.
The Dobbs decision, which you can read here, includes a carefully reasoned, 79-page majority opinion by Justice Alito, reviewing the history of abortion jurisprudence under the common law and in the American states during the 19th Century and early 20th Century. It includes a detailed appendix of state laws, demonstrating that among the 37 states that were part of the Union at the adoption of the 14th Amendment in 1868:
- Three quarters (28 out of 37) criminalized abortion by statute at the time of the adoption of the 14th Amendment.
- All of the other 9 states of the Union as of 1868 subsequently criminalized abortion, with 8 of the 9 doing so before 1910.
Justice Alito’s opinion in Dobbs is an originalist argument, seeking to determine the original meaning of the Due Process Clause of the 14th Amendment, to determine whether that Clause recognized a right to an abortion. The 14th Amendment, of course, like the rest of the Constitution, says absolutely nothing about abortion. The word “abortion” never appears, nor does any similar term to describe this practice.
Chemerinsky has a different view. I think that his view is fundamentally at odds with the very idea that the law exists. Here is his principal argument about the Dobbs decision:
In Dobbs vs. Jackson Women’s Health Organization, the court overruled a half-century of decisions protecting a constitutional right of women to choose whether to end their pregnancies. The decision must be understood as entirely about the conservative desire to end abortion rights and not about constitutional principles or judicial methodology.
There is a desire to think that law exists apart from the identity and ideology of the justices. But that is a myth when it comes to the Supreme Court. Its decisions always have been and always will be a product of the identity of those on the bench. For example, from the 1890s until 1936, the court had a very conservative majority and declared unconstitutional over 200 federal, state, and local laws protecting workers and consumers. Only once in American history, during the Warren Court, from 1954-1969, and especially from 1962-1969, was there a liberal majority on the high court and its decisions were progressive in a way never otherwise seen in American history.
Roe vs. Wade was overruled not because of anything about its reasoning or any method of judicial interpretation but because Donald Trump won the presidency in 2016 and was able to appoint three justices to fulfill his promise to put on the court individuals who would end abortion rights.
If I understand those first two paragraphs correctly, Chemerinsky is arguing that the law does not exist apart from “the identity of those on the bench.” I take this to mean that what we call “the law” is, in Chemerinsky’s view, nothing but the whim of the Supreme Court majority of the moment. Legal analysis and historical reasoning are irrelevant, it seems. At least to Chemerinsky, apparently.
They matter to me.
If this is his view, one does have to wonder what Chemerinsky is doing as dean of a prestigious law school.
It seems clear, from Chemerinsky’s rhetoric, that he has a view of constitutional law in which only the outcome matters. He criticizes the Supreme Court in the early 20th Century for overturning “laws protecting workers and consumers.” He praises the Warren Court for decisions that “were progressive in a way never otherwise seen in American history.” He doesn’t seem to be concerned, in the slightest, about the legal reasoning of any of those decisions. Just the outcome.
I wonder if Chemerinsky believes what he writes. I suspect that he does not, but I can’t read his mind. His own view is clear, I think. Constitutional law, to Chemerinsky, is about nothing other than promoting his preferred agenda and policies. He cares nothing, as far as I can tell, about our traditions and history. He doesn’t even seem to care much about the meaning of words. He comes across as quite post-modern, to me.
All of this will happen — not because of any constitutional principle — but because a majority of the justices have decided they have unbridled power to govern the lives of Americans as they choose.
I think that he is projecting. The people who claimed “unbridled power to govern the lives of Americans as they choose” are the radical Leftists, like Chemerinsky and, sadly, a long line of Supreme Court Justices, who disregard the Constitutional text, history, tradition, and precedent. The only precedents that they respect, as far as I can tell, are their own decisions exercising their “unbridled power” to conjure Constitutional protections out of thin air.
This is just my opinion. Chemerinsky appears to be utterly without integrity or honor, a demagogue who will say anything to advance the policies that he favors. When the Supreme Court presents a masterful 79-page opinion about our law, history, and traditions, Chemerinsky dismisses it as irrelevant.
This strikes me as disdain for the law, and contempt for the legal traditions and history of our country.
I find it difficult to have any respect for Chemerinsky. I had heard of him before, but did not pay much attention to his views, which struck me as quite representative of the radical Leftists in the legal academy.
I want to return to another portion of Chemerinsky’s article, in which he contrasts the Dobbs ruling with the Second Amendment decision earlier this week. He wrote:
Justice Samuel Alito’s majority opinion in Dobbs focuses on the need to leave the issue of abortion to the political process. But there was no deference to the political process earlier this week when the conservatives on the court declared unconstitutional a New York law limiting concealed weapons that had been on the books since 1911 or struck down a Maine law that limited financial aid to religious schools. This conservative court defers to the political process when it agrees with its results, as it does with laws prohibiting abortions, but the deference vanishes when the conservative justices dislike the states laws.
Again, I simply find it difficult to believe that Chemerinsky actually believes this nonsense. In law school, we are taught to understand and argue both sides of a position. I have trouble accepting the idea that Chemerinsky is simply not bright enough to understand the difference between, for example, the Dobbs decision, the Bruen decision (on the Second Amendment), and the Carson case (on the Maine law about education support).
In Dobbs, the Supreme Court found that the Constitution, which never uses the word “abortion,” doesn’t affect the law regarding abortion. The Constitution is silent and so, unsurprisingly, the conservative Supreme Court Justices interpreting that Constitution found that it has nothing to say on the issue.
The originalist argument is a bit more complex than this, as recognized by Justice Alito’s opinion in Dobbs. Constitutional silence does not necessarily mean that a claimed right is not part of the Constitution. This principle is stated in the Ninth Amendment, which provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The long-standing test for recognition of such rights, quoted in Dobbs, is that such a claimed right must be “deeply rooted in our history and tradition.” Abortion was not, as plainly demonstrated by Justice Alito’s opinion. (Neither is homosexual sodomy, by the way, but that’s an issue for another day.)
In Bruen, the Supreme Court noticed that the Constitution has a clause about gun rights, stating that “the right of the people to keep and bear Arms, shall not be infringed.” The Constitution is not silent and so, unsurprisingly, the conservative Supreme Court Justices interpreting the Constitution found that it meant what it said. (There is a textual question about the Second Amendment, due to the prefatory clause about a “well regulated Militia,” which could give rise to reasonable arguments on both sides that the Court would have to resolve. But the Constitution plainly addresses the issue of gun rights.)
In Carson, the Supreme Court noticed that the Constitution has a clause guaranteeing the “free exercise” of religion. There was surprisingly little jurisprudence about this clause until the mid-20th Century, but at that time, one of the principles stated by the Court was that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Thus, when the state offers a broad benefit to individuals or groups, like the high school tuition assistance at issue in the Carson case, it cannot withhold that benefit on the basis of religious affiliation. On the law presented in Carson, the text of the Constitution, and prior precedent, was not silent and so, unsurprisingly, the conservative Supreme Court justices interpreting the Constitution found that it meant what it said, and applied it consistent with precedent.
Constitutional law may be complex in a number of areas. It should be pretty clear, though, that there is a coherent judicial philosophy at work in the Dobbs, Bruen, and Carson decisions. I don’t think that this is terribly difficult to understand. It certainly should be fairly easy for even a mediocre law school student to follow this reasoning.
Which brings me back to Chemerinsky.
Faced with the alternatives, I conclude that Chemerinsky probably knows the legal doctrine underlying the Dobbs, Bruen, and Carson decisions. If not, then he is willfully blind, in my opinion. He doesn’t have to agree with it, but he should be able to follow it.
Yet he denies that it exists, in an opinion article published in a major newspaper. I find this deeply dishonest.Published in