Adler v. Chemerinsky on the U.S. Supreme Court

A civil discussion on the U.S. Supreme Court and its role in American life, past and present.

Last week, I had the honor and pleasure of participating in a forum at the University of California at Berkeley law school on the U.S. Supreme Court with Dean Erwin Chemerinsky. As one might expect, we disagreed on quite a bit.

The program, "Reshaping American Life: Today's Supreme Court in Historical Context, and its Potential Impact on our Future," was expertly moderated by Justice Carol Corrigan of the California Supreme Court and was the first in a series of programs co-sponsored by the Berkeley Judicial Institute, Bolch Judicial Institute of Duke Law, and the of the American Bar Association Litigation Section.

For those interested, here's a video of the event.

Comments

[Jacob Grimes]

It's clear from reading the transcript that one of the speakers has developed a pretty big head.

[Dilan Esper]

Erwin has a strong case that the current court overturns precedents a lot more than it should.

But a couple of observations:

1. Why is the Lochner court the comparison rather than the Warren court? The Lochner court, for the most part, followed precedents! It did a lot of real law, trimming sails (compare, for instance, Lochner itself to Muller v. Oregon, or Hammer v. Dagenhart with Champion v. Ames), and developing doctrine.

I don't, of course, LIKE the doctrine the Lochner court created. It was bad doctrine. But the great precedent overturning court was the Warren court. They overturned Plessy, Wolf v. Colorado, Betts v. Brady, a whole bunch of redistricting cases, Olmstead, Beauharnais (effectively), etc. And much of what the Warren court created was better doctrine. But they definitely overturned precedents to do it!

2. I don't think his story on affirmative action or Lemon fits in his argument. With respect to affirmative action, yes, SFFA overturned the very narrow holding in Bakke that allowed for a very tiny bit of affirmative action. But it's completely inaccurate to say Bakke "allowed college affirmative action". It allowed a very narrow system where there were no quotas and a very small plus for diversity. Colleges then pretended that Bakke meant all affirmative action including aggressive de facto racial quotas and explicit discrimination against Asians was legal. That's how SFFA happened. Colleges were abusing their privilege.

With Lemon, it's a little different. Lemon hadn't been good law for decades. It was a dumb test. Nobody knew what it meant or how to apply it. From the early 1980's on, the Supreme Court didn't use it much and came up with other, better tests such as endorsement and coercion. Eventually, they killed Lemon. Good riddance! But killing off an already dead test is not the same thing as overturning a live valid precedent like Roe/Casey.

[Dilan Esper]

Also, on his discussion of SFFA, I agree that there's a strong originalist case for affirmative action that takes slots away from well off whites and gives them to Blacks. That's essentially the modern equivalent of the Freedman's Bureau.

But elite colleges weren't doing that. They had to satisfy their donors and alumni, and that meant preserving slots for privileged white people. Instead, they took slots away from historically oppressed Asians and gave them to Blacks. And there's no originalist case for that, unless you want to cite the Chinese Exclusion Act or something.

[Brett Bellmore]

"That’s essentially the modern equivalent of the Freedman’s Bureau."

I mean, it would be, if you could find any recently freed ex-slaves. And recent slave owners to benefit them at the expense of.

[Dilan Esper]

The freedman's bureau assisted the families of ex-slaves too.

[Rev. Arthur L. Kirkland]

You don't belong at the Volokh Conspiracy.

That's a compliment.

Case Western deserves better than to be associated with this flaming clustermuck, too.

Doesn't the bigotry every get to you?