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The Conservative Legal Movement Should Be Concerned
Recently a piece in the LA Times should send the hairs on the backs of conservatives up. It’s entitled “Two recent opinions by Justice Clarence Thomas should alarm us all,” and Erwin Chemerinsky’s argument is terrifying.
Chemerinsky (Dean of the UC Berkeley School of Law) opens the piece thus:
Twice in the last two weeks, Justice Clarence Thomas has written alarming opinions that call into question fundamental constitutional protections. In one, he disputed the right to counsel for those accused of crimes; in the other he called for revisiting fundamental press freedoms established more than 50 years ago.
Astute Ricochetti may notice that the Constitution was written more than 50 years ago. Most people don’t refer to events prior to 1800 as “more than 50 years ago.” Still, I was curious at this point exactly what Thomas had written and why it was important. It was presumably important, since it was “alarming” which I guess is an argument now. On second reading, it strikes me how Chemerinsky is discussing Thomas as one would normally discuss a politician. “He disputed the right to counsel,” as if the issue is that Justice Clarence Thomas personally thinks people should not have the right to legal counsel rather than whether or not he was correct in questioning whether the law was applied correctly in another Supreme Court case. This is something Justices do all the time. Also, remember all those campaign promises to overturn Citizens United?
Chemerinsky gives a brief history of how the 6th Amendment morphed into something that guarantees defendants in state courts the right to legal counsel, which will be provided to them by the state if they cannot afford it. Thomas noted that the right to employ legal counsel is not the same as the duty of the state to furnish you with a lawyer if you cannot afford it. This itself is not an opinion, it’s a fact. Those are very different things. Chemerinsky sort of butchers Thomas’s view in the paragraph immediately after he quotes Thomas. [There’s view again, as if he’s a politician!]. Here he is again:
Under Thomas’ view, there is no constitutional right to counsel in criminal cases in state court, even in capital cases or when there could be a life sentence. It is a chilling view of criminal justice, yet two other justices, Neil Gorsuch and Samuel Alito, agreed with that reasoning and joined all or part of his dissent.
First of all, it’s not clear to me that the Dean of the UC Berkeley School of Law understands the difference between the right to counsel and the right to force everyone else to pay for your lawyer. But, onwards. All this paragraph is saying is:
A. Justice Thomas’s interpretation of the law would lead to outcomes that scare me.
B. Somehow, he’s not the only one who interprets the law this way!
The way he goes from “It is a chilling view,” immediately to “yet,” as if he has made a good point, or any point at all, is kind of hilarious. I guess he is implying that if something is scary it must also be incorrect. If only we had another branch of government that could change the laws if we didn’t like them.
Chemerinsky goes on to discuss Clarence Thomas’s other “disturbing reasoning” [see it?] in which he questioned the New York Times vs. Sullivan. Chemerinsky explains this less well than the other case history, but my takeaway is that the Supreme Court decided that any speech that the first amendment would protect from the government is also protected by it from libel suits brought by private individuals. This is why we have different standards for libel for public figures, I assume(?). More from the piece:
[Thomas] wrote that “New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” In Thomas’ view, there is no constitutional limit on civil suits based on speech, including defamation liability.
Chemerinsky, who, again, is the Dean of a freakin’ law school, is not actually making an argument here. Does he think he is making one? He could actually engage with Thomas’s interpretation of the law, which is something you would think he would be well-positioned to do. He substitutes scaring his readers for persuading them. He also seems to have internalized the idea that if a legal interpretation might lead to an outcome that is undesirable, we need a new legal interpretation, rather than new laws to interpret. The most amazing part to me is that he doesn’t seem to be aware that he’s doing either of these things. He fails to engage with the substance of the quotes of Justice Thomas that he chose himself. It’s like he can look at the words and not actually see what they mean and comprehend it as an idea.
What is his big conclusion to all of this? I kid you not, this is how he ends his piece:
Published in LawA Supreme Court justice now has put on the intellectual table overruling two basic pillars of freedom. We all should be upset and scared.
Good post. I think I’ve never heard an opinion by Erwin Chemerinsky with which I agreed.
Unfortunately, the academy is in lock step with the Dean. They refuse to accept that the Constitution may not simply serve as a vehicle to deliver every normative benefit.
That’s why I love Thomas I’m the bench. He has no problem with accepting the fact that things we like (I’m fine with many of the warren court policies in criminal procedure) are not mandated by the Constitution.
But the good Dean doesn’t realize Thomas is not making a normative statement, he’s simply saying (sometimes implicitly sometimes explicitly) that the political actors should make these nice things law. Crazy I know, that the elected branches make policy.
Chemerinsky is the brilliant legal mind who informed us during the debate over Obamacare that the Commerce Clause would allow Congress to direct American consumers to buy cars from GM (though he did admit that would be a bad idea – big of him!).
I give him points for consistency, I suppose. But I deduct them back, with prejudice, for failing to consider what this logic leads to.
Let’s not forget that the good Dean’s position on the commerce clause and the ACA led to one of the greatest questions by Justice Scalia at oral arguments: solicitor, can the commerce clause permit congress to force us to buy broccoli? https://washington.cbslocal.com/2012/03/27/you-can-make-people-buy-broccoli-scalia-goes-after-health-care-law/
I’ve never even heard of Erwin Chemerinsky before. But this is a good post. We need more of this kind and style of analysis.
I think the Dean’s is a very good example of what passes for reasoning in today’s academy.
Very good post, btw.
He was a regular guest on the Hugh Hewitt program for years, opposite John Eastman. I almost always agreed with Eastman, essentially never with Chemerinsky.
He is very civil in his conversation. It’s just that he’s mostly incredibly wrong.
Does my right to bear arms require the government to buy me a gun?
Freedom v license. You could go to your local police department, or sheriff’s office, and demand a Glock. You probably won’t get the Glock, but depending on how you behave while demanding the Glock you might need that court appointed defense attorney. As a taxpayer I would rather chip in pay for your attorney rather than paying for an abortion.
Chemerinsky has been pushing outcome-based reasoning since his days as a professor at Duke, continuing through his days as founding Dean of the new law school at UCIrvine, so it does not surprise me that he continues it today at Berkeley.
I rarely read his stuff anymore because almost everything I have read from him is results-driven analysis that he tries to masquerade as “legal analysis.” Unfortunately, that result-driven analysis has been the standard in legal academia for decades.
The great contribution of Justice Thomas and the late Justice Scalia has been to get legal minds to focus on the law first, and not to let a desired outcome drive interpretation of the law. But, there is still a lot of inertia behind results-driven analysis pretending to be legal analysis, especially in academic circles.
Simply Great Post.
Chemerinsky has been at this Leftist Progressive nonsensical legal reasoning for a long time. I think what is new for not just Erwin but for many Democrats is just how brazen they believe they can be in getting away with a big lie. The Democrats must now feel they have indoctrinated and effectively brainwashed enough people so they say the most ridiculous things without any blowback.
The sky is falling. Oh no!
Oh wait. Its not.
I personally believe that the state providing legal representation to indigent criminal defendants is good public policy, because we lawyers are too darned expensive for most ordinary criminal defendants, and the government would otherwise run roughshod over them. That said, I am not sure how anything in the United States Constitution should ever be construed to require states to pay for someone’s legal services. It is a violation of the fundamental principles of federalism. I agree with Justice Thomas on this.
As for New York Times vs Sullivan, I disagree with Justice Thomas. The right to bring a defamation case is itself an exception to the rights of free speech set forth in the First Amendment. It is a judicially created exception. The judiciary may therefore craft whatever tests and limitations it deems appropriate to protect the rights of free speech under the First Amendment. New York Times s Sullivan, requiring an elevated standard to prove defamation by a public figure seems perfectly reasonable, if a defamation action is to be permitted at all.
All that said, expressions in dissenting opinions by a single justice (or even with two additional as in the Sixth Amendment opinion) are hardly a harbinger of doom.
I think Thomas is looking at it from the standpoint of appellate courts hearing arguments about whether a conviction should be overturned on sixth amendment grounds (ineffective counsel or denial of right to counsel). Taken to extremes, any trial strategy, evidendentiary use could be second-guessed and the existence of any shoulda-woulda-coulda scenario could be grounds for a new trial. Clarifying what the Sixth Amendment says is not a denial of basic rights.
On the other hand, the reason there is some provision for providing legal representation for the accused is not just simple fairness but the fact that getting it wrong at trial creates expensive appeal processes. In our criminal courts we sometimes see an overworked, underpaid, unprepared court-appointed or public defender attorney at the trial level but half the faculty of Harvard Law on the appeal. Providing the resources to get it right the first time would be vastly preferable. Whether the sixth Amendment mandates that is a separate issue.
Reboalting.
I’m not upset or scared. Other than that this guy is an academic “leader”.
Indeed. What is “alarming” is that Chemerinsky has any kind of position of authority at any institution of education, especially DEAN of a LAW SCHOOL! That’s actually worse than Barack Obama supposedly being a scholar and professor of constitutional law.
Chemerinsky’s embarrassing appearances on the Hugh Hewitt radio show led to one of my long-lasting maxims, “I/E-rwins Are Wrong.” (Hugh had another occasional guest named Irwin, I can’t remember his last name, who was also consistently wrong. So I made the maxim work for both spellings.)
… and cowed into criticizing said Justice as if he had said something wrong or unintelligent. So much for diversity.