Supreme Court

Thoughts on Dean Chemerinsky, Supreme Court Justices, and "Partisan Hacks"

If anything, Josh was too gentle on Dean Erwin Chemerinsky's latest op-ed.

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Over the weekend, Erwin Chemerinsky, Dean of University of California at Berkeley School of Law effectively accused the Republican appointed justices of the Supreme Court of being "partisan hacks."  Josh Blackman commented on Chemerinsky's op-ed yesterday. In my view, he was too gentle.

In his op-ed, Chemerinsky argued that "time and again the court's Republican majority has handed down decisions strongly favoring Republicans in the political process." As Josh noted, Chemerinsky conveniently ignored all of the 2020 election cases in which the Supreme Court refused to intervene. Josh could have also noted that the evidence Chemerisnky cites does not support Chemerinsky's claims.

Chemerinsky writes:

In a series of rulings, with all of the Republican-appointed justices in the majority and the Democratic-appointed justices dissenting, the court has strongly tilted the scales in elections in favor of Republicans. In 2010, in Citizens United vs. Federal Election Commission, the court ruled 5 to 4 that corporations can spend unlimited amounts to get candidates elected or defeated.

Business interests, which overwhelmingly favor Republican candidates in their campaign expenditures, outspend unions by more than 15 to 1.

This passage would lead the reader to believe that the Supreme Court's Citizens United decision unleashed a torrent of Republican-leaning campaign expenditures. But let's take a closer look.

The source for Chemerinsky's claim about corporate interests outspending labor interests is a Guardian op-ed, which in turn links to Open Secrets, which shows a 16-to-1 "advantage' of business contributions over labor contributions. Note, however, that this data includes campaign and PAC contributions, which were not affected by the Citizens United decision. (The case concerned independent expenditures).

Note further that the 16-to-1 number is based upon attributing all individual contributions to the individual's employer. So, if a partner at a big DC law firm, Wall Street investment house, or Silicon Valley tech firm gave money to a candidate, Chemerinsky's source characterized that as a "business" contribution. Moreover, as Open Secrets notes, "Since nearly everyone works for someone, and since union affiliation is not listed on FEC reports, totals for business are somewhat overstated, while labor is understated." But, wait, it gets worse for Chemerinsky's claim.

Not only does Chemerinsky cite data about contributions (which were not at issue in the Citizens United decision), as opposed to expenditures (which were), he claims this is evidence of the conservative justices supporting Republican interests, but that is not what the source of his data shows. According to the Open Secrets page that is the source of his claim, "business" contributions in the 2016 election cycle to Democrats and Republicans were evenly matched, while overall contributions tilted in Democrats favor. In other words, Chemerinsky's claim that business interests, "overwhelmingly favor Republican candidates in their campaign expenditures" is contradicted by his own source. His claim is false. The Los Angeles Times should publish a correction.

Is it possible Chemerinsky just cited the wrong source? Perhaps. If one instead wants to look at the effect of Citizens United on independent expenditures (which is what was actually at issue in the case), do we see support for Chemerinsky's claim? A little. Open Secrets has data on this too. It shows that conservative outside spending exceeded liberal outside spending in the 2012 and 2016 election cycles, but not in 2020. Further, this includes spending during primaries, in which independent expenditures were used for internecine battles, and not to advance one party's candidate over another's.

Perhaps Chemerinsky is just accusing Republican appointed justices of being partisan because they are reaching conclusions he does not like. After all, Chemerinsky repeatedly gives liberal justices a pass for behavior that is no less partisan than that which he laments from the conservatives. If anything, he would like them to be more partisan, at least when it comes to their retirement decisions. For instance, here is Chemerisnky urging Justice Breyer to step down while Democrats control the White House and Senate.

Keep this in mind when considering Chemerinsky's complaint that the conservative justices voted to uphold Arizona's voting laws in Brnovich v. Democratic National Committee. What Chemerinsky fails to mention is that the conservative justices reached the same conclusion as the Biden Administration's Justice Department –that the Arizona laws did not violate the Voting Rights Act—while the liberal justices adopted the line pushed by the Democratic National Committee. And from this we are to conclude that conservative justices are the partisan ones?

If the conservative justices were partisan hacks, we would expect them to vote as a block, and yet that is not what we see. Indeed, the justices appointed by Democratic presidents vote in lockstep significantly more so that do the Republican justices. Taking the data compiled by SCOTUSBlog from this past term, the average rate of agreement of the Court's liberals was over 90 percent. For the conservatives it was only 86 percent. (Both numbers are high because of the large proportion of unanimous cases.) Is this distinction a function of the Chief Justice's moderation? Not really. Exclude the Chief and the average rate of alignment among the other conservative justices is still only 87 percent. The reality is that the Court's conservatives break ranks with each other more often that the Court's liberals do.

My claim is not that the liberal justices are "partisan hacks." I believe that the liberal justices—indeed, all the justices—make a good faith effort to reach the proper decisions in the cases before them, in line with their underlying judicial philosophies. But if one wishes to ascribe justices' behavior to partisan behavior, the evidence supporting such a charge against the Left is as strong, if not stronger, than that Chemerinsky marshals against the Right.

That Chemerinsky sees the behavior of the Court's justices in political terms may be a funciton of his own judicial philosophy. As Chemerinsky admitted in this Q&A with Orin Kerr, he does not believe the Constitution itself is particular constraining and that one's constitutional law views are largely driven by policy preferences. This could explain Chemerinsky's, er, flexible view of some constitutional questions—such as the permissibility of the Senate filibuster and how it could be eliminated. But just because Chemerinsky is comfortable aligning his views of constitutional law with his policy preferences does not mean that everyone else does. And just because he insists on seeing some legal questions in partisan terms does not mean the justices do.

NEXT: Court Rejects First Amendment Overbreadth Challenge to Ban on Obstructing Law Enforcement

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  1. I’m impressed that both Blackman and Adler managed to misspell “Erwin” in the very first line of their posts.

    1. Adler has it spelled the same as it is on the byline of the linked op-ed.

  2. Adler is flailing, and Chemerinsky is correct.

    1. Thank you for the substantive critique.

    2. Democrat dipshit ipse dixit. Two year old mentality.

    3. No he’s not, and no he’s not.

      Your turn…

    4. Adler is rubber and you’re glue…

  3. Leftists like Chemerinsky are just delivering their lines to advance their position. It’s a tactic. The words do not indicate a belief.

    Leftists believe in power and say whatever words will help the left toward their goals of power over others.

    In this particular case it’s likely a messaging strategy to color future news coverage of upcoming court decisions. And to try to pre-legitimize whatever the left’s radical anti-American actions will be in response to those decisions.

    1. If there is one thing we know about the right-wing from history, both generally and relatively recently, it’s that they are absolutely unconcerned with power and using whatever rhetorical or other means to achieve it. I mean it would frankly be impossible to ever find an example of a right-wing politician or pundit using words in an effort to advance an agenda and obtain power.

      1. Power seeking is true of everyone in politics. Power results in wealth. That results in a great girlfriend and successful children. Reproduction is the sole purpose of life, and all behavior serves it indirectly. You will not change that without CRISPR tech.

      2. It is, indeed, not easy to find any examples of right wing politicians.

        There are politicians who don’t hate Americans and aren’t trying to make our lives worse. They’re described as right wing, but conducting government business constructively to maintain civilization is hardly “right wing”.

        There are politicians who want honest elections. That’s not “right wing”.

        There are politicians who want immigration policy that serves Americans, like every other country’s immigration policy serves the citizens there. That’s not “right wing”.

        There are politicians who have a religious belief and see a need to defend it against leftist bigots. That’s not “right wing”.

        The legendary “right wing” politicians make for good stories to scare children though.

        1. No, it’s not good guys and bad guys, you child.

          Conservativism is not about making America worse any more than liberalism is.

          Your politics of illegitimacy sure are, though.

          1. Politics of illegitimacy? Like claiming that people with top legal credentials who disagree with you are necessarily “partisan hacks”?

            1. Yes, like that.
              Chermerinsky is absolutely out of line.

              Partisan brain is a bipartisan affliction.

              1. “Partisan brain is a bipartisan affliction.”

                +1

                (while I’m commenting, on the ‘progressives want to destroy the nuclear family’ bit, sure there are fringe lefties who want to do that – some of the BLM founders for example, and some of the Weathermen back in the day. But it’s hardly a mainstream progressive thing, not even close. Saying ‘progressives want to destroy the family’ because of them is like saying ‘conservatives like to blow up child care centers’ because of the Oklahoma City bombing.)

                1. Conservative leaders universally deplored the Oklahoma City bombing. How many progressive leaders have stood up and defended the nuclear family?

                  1. When they weren’t celebrating same-sex marriage, that is.

                    1. Obtaining legal recognition for loving families is a good thing.

                  2. Does the nuclear family need defending? Indeed to the extent it does, expanding programs for childcare and parental leave is part of the progressive program. Also keeping the nuclear families of immigrants together.

          2. Except progressives goal is to destroy traditional society (family, morality and individual responsibility) and replace it with their authoritarian government. So they are in fact making it worse.

            1. Yup. They want to destroy the systems and structures that perpetuate white supremacy, and they say that all systems and structures perpetuate white supremacy. Especially families.

              1. Listen to yourselves.

                1. We listened. This is what we heard.

                  1. You all think you live in a badly written children’s cartoon.

                    Just as you don’t want to destroy America, liberals are not villains wanting to destroy America.

                    Grow up, all three of you.

                2. If you think the other side is evil and anti-American, you can rationalize some pretty anti-American crap to combat them.

                  Like, say, throwing out votes to give the Republicans a win. What is a minor vacation from Democracy so long as it saves it from Democrat Fascists in the long run?

                  This is not a healthy or patriotic way to think.

                  1. Or voter fraud.

                    I just listen to what the other side says, Sarcastro.

                    1. You think Dems are doing voter fraud to own the cons?

              2. Of all the delusional conservative beliefs about progressives, the idea that they are anti-family has got to be the dumbest.

              3. Some things must be destroyed as a religious sacrifice to The Earth.

                Mustn’t forget that there are multiple reasons that things must be destroyed.

                1. So would it shock you to know that I spent a very enjoyable weekend with my family?

                  1. No. It’s always the other guy’s happiness that must be sacrificed. The loudest environmentalists fly on private jets. And BLM founders own multi-million dollar homes in exclusive neighborhoods.

                    1. Non sequitur. We’re talking about how progressives want to destroy the family, a proposition you appear to agree with. Explain how that’s possible while I was able to have a nice weekend with my family.

                    2. Careful not to endorse any sort of family values. You will be denounced and canceled.

                      https://nymag.com/intelligencer/2017/09/can-an-embrace-of-bourgeois-values-revive-america.html

                      Good thing you’re anonymous here.

                    3. Ben_

                      This is incredibly dumb. And I think you know it too. Progressives love their families as much as anyone. Indeed, recognizing the families of gay people as legitimate, keeping immigrant families together, and expanding child-care credits and parental leave benefits is actually part of the platform of progressive politicians. If anything they want to ensure more family stability to make sure families have the resources to thrive.

                      And some of the most prominent progressives are also prominent family men: Obama is a loving husband and a doting father. Biden talks about the grief of losing family all the time. In fact Trumpish assholes liked to torch Biden for being proud of both of his sons.

                      And who is the most popular leader of the pro-family conservative movement right now? A guy who cheated on all his wives and proudly shied away from the difficulties of raising kids. So yeah. Progressives are the ones who hate families. GMAFB

          3. I remember the left routinely calling the last President a Russian agent for years based on a fraudulent story pushed by Clintons.

            But now the “politics of illegitimacy” somehow became bad.

        2. You know, it’s actually kind of cute how naïve this is.

      3. I mean it would frankly be impossible to ever find an example of a right-wing politician or pundit using words in an effort to advance an agenda and obtain power.

        “They do it too” is not an argument. Either Ben is right here, or he’s not.

        That said – the right is more concerned with individuals than groups. So by nature, the left is going to be more concerned with power.

        1. Ben is wrong in that he’s trying to characterize the left as exclusively concerned about power and using means to obtain it. He actually doubles down on this ridiculous belief in his reply.

          “That said – the right is more concerned with individuals than groups. So by nature, the left is going to be more concerned with power.”

          This is ridiculous in two ways. First right-wingers ARE concerned with groups and always have been. Nationalism is about a group. The entire immigration debate is about groups. Their religious politics is certainly about groups. Their current discussion of sexuality and trans rights is absolutely about the two groups of men and women. If they cared about individuals, there would never be bathroom bills.

          And second, even assuming your first point was right (it absolutely is not and it’s ridiculous to even suggest such a thing), being about individuals rather than “groups” actually does require the exercise of power. People often want to take collective action in society. But it actually requires an exercise of power to prevent that from happening if the “individual” is supposed to be supreme. For instance, even if the majority of people want Medicare-for-all at the expense of the “individual” it takes the exercise of political power to prevent that from happening.

          1. Ben is wrong in that he’s trying to characterize the left as exclusively concerned about power and using means to obtain it.

            OK, but in fairness, how is he wrong? What major (or minor) issue is the left in favor of the individual, other than abortion? Because when it comes to any other, they’re always in the same position – the group supersedes the individual.

            First right-wingers ARE concerned with groups and always have been. Nationalism is about a group.

            Yes. Americans. INDIVIDUAL Americans. Whose rights seem to be secondary to the whims of big business and government.

            The entire immigration debate is about groups. Their religious politics is certainly about groups. Their current discussion of sexuality and trans rights is absolutely about the two groups of men and women. If they cared about individuals, there would never be bathroom bills.

            I’m seeing a pattern here. You’re not understanding my use of the terms “individual” and “groups”. The left governs from the belief that it knows what’s best for everyone. The right SHOULD govern from the standpoint that individuals know what’s best for them (although Republicans often do not govern that way).

            American individuals are affected as a whole because 2 million illegals have poured over the border since January. The fact that the “right” tries to speak for them doesn’t mean that they govern based on groups.

            1. This is completely incoherent. The right governs for individuals not groups but speaks for all individuals together all at once as an unidentified mass. But you wouldn’t call that a group.

  4. The left uses personal attack, and words like hack. The facts abandoned the Left 100 years ago.

  5. Dean Chemerinsky is being perfectly consistent. If the constitution is exactly that which advances his policy preferences, it necessarily follows that anyone who does anything other than advance his policy preferences is not following the constitution, and it’s perfectly reasonable to conclude that that must be due to partisanship.

    If “following my policy preferences” is the definition of “following the constitution,” if my policy preferences ARE the constitution, it follows pretty logically that what other people call following the constitution must actually be following their policy preferences.

    It’s sort of a mirror-opposite of Trump. What motive could people posssibly have other than their side’s advantage? If you admit no such motive can exist, and also thinks ones own side the only possible legitimate one, then it follows completely logically anyone not on ones side must be an enemy, and must have improper motives.

    1. This is too simplistic.

      The words in the constitution are supposed to mean something. If not, why even have a constitution? Chemerinsky flat out admits that the words mean less than the policy preferences he prefers.

  6. There are a couple federal judges in Texas I would characterize as straight up partisan hacks, but I don’t think the term is useful as applied to judges and justices overall, even on this Court. But judges and justices are politicians and do behave politically. To borrow something succinctly put on Twitter of all places, if a decision involves at least two people, it’s politics.

    So while judicial politics operates differently than electoral/legislative/presidential/bureaucratic politics, the current slate of GOP judges will still ultimately advance a conservative agenda and it will often translate into partisan political advantage.

    Rucho is a great example of this. Thanks to that decision, there will be a supermajority of Republican legislatures like Wisconsin in several states that have a much closer partisan make-up or completely lack close to majority support whatsoever.

    So sure, they won’t adopt outlandish theories to install a clear loser as the President. And maybe they won’t accept whatever the AG hack du jour argument when it comes to throwing out certain laws. But you could argue that not giving the most extreme partisans an immediate win is simply savvier politicians taking a longer-term view about how to approach achieving conservative goals and solidify conservative wins. Suddenly kicking millions of people off of Medicaid and throwing everyone else’s insurance into chaos because someone felt sad they had to pay a $0 tax is the kind of thing that the savvy justices figured wouldn’t actually further any long-term conservative or even Republicans causes whatsoever. So its not at odds with the idea that they aren’t political or even partisan political.

    1. I assume you agree that judges and justices on the left are also politicians and behave politically, and will serve to advance a left-wing agenda?

      In fact, isn’t this whole point of forum shopping?

      1. “I assume you agree that judges and justices on the left are also politicians and behave politically, and will serve to advance a left-wing agenda.”

        Correct.

    2. “Rucho is a great example of this. Thanks to that decision, there will be a supermajority of Republican legislatures like Wisconsin in several states that have a much closer partisan make-up or completely lack close to majority support whatsoever. ”

      Now discuss NY, Illinois, Massachusetts and Maryland.

      1. Partisan gerrymandering is very bad there. That was pointed out to the justices. But they recognized it works to a Republican advantage much better because of geography so they allowed it. Kagan would have struck those maps down too.

        1. “they recognized it works to a Republican advantage ”

          I doubt they wrote anything resembling this assertion.

          1. Well yeah that would be dumb of them to do. But that doesn’t mean they don’t understand what the result of their decision is and how its good for Republicans in the short/medium/long term.

  7. A hit dog will holler, and based on the reactions from all the FedSoc types, Chemerinsky seems to have hit a nerve. Good. Anything that undermines the public legitimacy of this court is for the better.

    1. “Anything that undermines the public legitimacy of this court is for the better.”

      Agreed.

      1. Once you have eliminated the Court’s legitimacy, what type of society do you have left? Solely might makes right? Why do you assume you will be part of the might?

      2. And when the legitimacy of the Court is down, and the devil turns round on you, where will you hide then? D’ye really think you could stand upright in the winds that would blow then?

        1. Exactly. Robert Bolt’s play “A Man for All Seasons” should be required reading for all law students, judges, law clerks, and others.

    2. And nothing would undermine SCOTUS’s public legitimacy more thoroughly than court packing.

    3. A hit dog will holler . . .

      Indeed — I can’t think of a better way to characterize Chemerinsky’s op-ed. Well done.

    4. A hit dog will holler, and based on all the reactions on the left to his election claims Trump really seems to have hit a nerve. Good. Anything that undermines the public legitimacy of our election systems is for the better.

      See, everybody can play this game! It doesn’t matter to either your statement or mine that the data shows that the idea is total garbage. Bogus horseshit is great as long as it fucks something up.

      1. If you have any data to rebut the claim that the conservative justices often decide cases based on ideological preference, I’d love to see it. But this sort of bluster and false equivalence won’t cut it.

        1. First provide the date proving that the Justices thought by you to be conservative often decide cases based on ideological preferences. We’d love to see them.

          1. Well two pretty significant data points, for starters, would be the court’s recent Voting Rights Act jurisprudence and Bush v. Gore. Neither is remotely defensible as a matter of legal principle and both favor conservative interests, so it would be reasonable to infer that they were motivated by the exercise of political power. The latter even expressly disclaims its own legal reasoning, and few of its supporters even bother trying to defend it (Scalia’s defense of it was “get over it”).

            1. Absolutely. The “conservative” justices always rule in favor of the Republicans on election matters. Keeping Republicans in power is the whole point. You bring up Bush v Gore and it’s a great example of these justices voting in favor of Republicans. I mean, two of the current justices were in the court back then, and one of them voted for Bush. Certainly shows how biased this group is toward Republicans.

              And you didn’t bring up their pro-Republican decisions related to the 2020 election. Why not?

              1. Because they were (at least borderline) Rule 11 sanctionable, and they weren’t willing to go that far. They are cold operators, not frothing lunatics. Doesn’t mean they aren’t biased partisans. Say you’re an NFL referee, and you want to help your team win. Do you start flagging the opposing team on every single play, no matter what? Or do you wait for opportune times to make a bad call? You’d be a lot more successful with the latter approach.

            2. I’ll see your VRA cases and Bush v. Gore (both ancient history) and raise you Bostock, McGirt and Obergefell. In contrast to the three avowedly liberal Justices (not including Roberts – yet), who nearly always vote in lockstep, the supposedly conservative Justices are all over the ideological board, based on the cases then under consideration.

    5. A hit dog will holler

      Of all the stupid clichés out there, this is the stupidest cliché. “If I say something offensive and insulting and you respond angrily, then this proves that what I said is true.”

  8. What an amazing conversation Chemerinsky has engendered. I sure do hope more law profs talk about how the other side is all corrupt!

    1. Chermerinsky is just another wackademic. But by U Cal Berkeley standards, he’s a moderate.

    2. Which came first, the Chemerinsky claims about political hackery or Barrett-Thomas claims about political hackery?

  9. So basically, Chermerinsky is a partisan hack.

  10. “Taking the data compiled by SCOTUSBlog from this past term, the average rate of agreement of the Court’s liberals was over 90 percent. For the conservatives it was only 86 percent.”

    I’m not sure how this number is calculated, but it could be misleading. There’s fewer liberal justices so it’s easy for them to vote in lockstep (requires 3/3 lately, or 4/4 previously). So if this is just measuring the number of times in which all of the justices on one side or the other vote together, you’d absolutely expect it to be rarer to get 6 people holding the same position than for 3, even if each individual is less strongly correlated.

    To put some made up numbers to it: let’s say each of Kagan, Stomayor and Breyer are 95% likely to agree with each other, so in any given decision you’d expect all three to agree just about the 90% of the time that Prof. Adler highlights. If all 6 of the conservative judges were similarly 95% likely to agree with any other conservative justice, you’d only expect them to vote as a block ~74% of the time, so 86% block voting would actually indicate a much larger degree of ideological consistency.

    Or maybe the number is just showing the probability of agreeing with any other justice as opposed to block voting–it’s not clear here, and I can’t find anything on Scotusblog that quite matches the numbers here (e.g., I found this: https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_5_19_23-26.pdf which shows the Roberts-Alito pairing to be more aligned than the Kagan-Breyer pairing, for example but doesn’t draw any conclusions about the blocks as a whole).

    1. For the entirety of that study it was 5-4.

      Besides, if it were 20 justices on one side, you’d still expect all of them to vote the same if they were partisan hacks.

      Be interesting to see this data with the 9-0 cases pulled out of the data base.

      1. Sure, but I have no idea what data Adler was talking about. I just found something that looked interesting on Scotusblog.

        In any case, even at 5-4 you’d expect that with a 95% level of justice agreement, you’d get a 5 person block to vote unanimously 77% of the time versus 81% for the 4 person block, which is on the order of difference that Adler suggests is supposed to show that the liberals are actually more partisan than the conservatives.

        But I basically agree with Brett below that the absolute numbers are too small to make any of this fine-grained analysis that interesting.

    2. My impression is that the statistical universe here is scarcely large enough to draw any kind of robust conclusion, especially given that most cases are decided unanimously. They deigned to hear 62 cases, and decided two thirds of them unanimously.

      There are obviously two blocks on the Court, that much is obvious, but any more finely grained conclusions are largely impossible given how few cases you’re talking about.

  11. Are they favoring Republicans or the religious right? I suppose that those are pretty much the same thing.

  12. I dislike Dean Chemerinsky’s claim that Republican justices are political hacks. His argument, likely more than his conclusion, is weak.

    I also dislike the claim by certain justices (Barrett, Thomas) that they are above political hackery. That argument is lame, too — and invites the obvious, warranted pushback.

  13. I’ve been following Chemerinsky’s career for some time. If anyone is a partisan hack, it’s definitely him.

  14. What are the consequences of constantly seeking to diminish the public’s interest in following Supreme Court decisions by attacking the good faith of the judges? If you succeed, how are these issues to be resolved? Are we simply to pick and chose which ones to follow and tell people wishing to follow the others to get lost?

  15. How can he say all the Republican appointees voted with the majority in Citizens United? Stevens wrote the dissent (that ran at least one hundred pages) and Souter joined it.

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