Erwin Chemerinsky

Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

Recent Articles

A Very Tarnished Court

Kavanaugh, or his replacement, will be the fifth Republican justice sitting illegitimately. 

Michael Reynolds/Pool Image via AP Supreme Court nominee Brett Kavanaugh gives his opening statement at the Senate Judiciary Committee hearing on Capitol Hill C onservatives are about to fulfill a quest that began with Richard Nixon’s campaign for president in 1968 and intensified during Ronald Reagan’s presidency: putting a staunch conservative majority on the Supreme Court. But the way that they have accomplished this has greatly tarnished the Court, perhaps irreparably. It is impossible to know the long-term consequences of this, but the Court and how it is perceived will never be the same. Even if the Democrats gain control of the Senate in November, President Trump is sure to have a nominee confirmed by January, whether it is Brett Kavanaugh or someone just as conservative. This will create the most conservative Court since the mid-1930s, with five justices at the far right of the political spectrum. No longer will there be Republican appointees like John Paul Stevens or David...

Remembering Judge Stephen Reinhardt

The legacy of the great liberal appellate judge, who died Thursday at 87

AP Photo/Jeff Chiu, Pool, File Judge Stephen Reinhardt listens to arguments on gay marriage bans at the Ninth Circuit Court of Appeals in San Francisco O ne of President Jimmy Carter’s greatest legacies was the terrific judges he appointed, especially to federal courts of appeals. Carter never got to appoint a Supreme Court justice. However, he did appoint nine women to federal courts of appeals judgeships—before then, only two women in all of American history had ever been federal court of appeals judges. Carter relied on merit selection committees, and that process yielded a group of truly excellent judges. One of the greatest of them, Judge Stephen Reinhardt, died yesterday at age 87. Reinhardt will be most remembered as a liberal judge in a time of an increasingly conservative Supreme Court. The majority of the Supreme Court justices were Republican appointees for the entire 38 years that Reinhardt was on the bench. It meant that he was sometimes reversed by the higher Court. But...

Upholding the Rule of Law

The appellate court informs the president that he can’t end-run the Constitution.

AP/Elaine Thompson
(Photo: AP/Elaine Thompson) Washington Attorney General Bob Ferguson speaks at a news conference about the federal appeals court's refusal to reinstate President Trumps ban on travelers from seven predominantly Muslim nations. I n ruling against President Trump’s travel ban, the United States Court of Appeals for the Ninth Circuit reaffirmed a fundamental aspect of the rule of law: No one, not even the president, is above the law. Courts can review the actions of all government officials to ensure their compliance with the Constitution. The lawyers for President Trump argued to the Ninth Circuit that the president’s decisions on matters of immigration are unreviewable by any court. The court forcefully rejected that claim. The judges wrote: “[T]he government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions contravene constitutional rights and protections...

Scalia, the Sequel

An originalist like Antonin Scalia, Neil Gorsuch is guided by 1787 thought processes, which made no provision for a right to privacy, or reproductive choice, or same-sex marriage.

AP Photo/Carolyn Kaster
AP Photo/Carolyn Kaster Judge Neil Gorsuch speaks in the East Room of the White House in Washington, Tuesday, Jan. 31, 2017, after President Donald Trump announced Gorsuch as his nominee for the Supreme Court. S enate Democrats face a difficult decision: Do they filibuster Judge Neil Gorsuch’s appointment to the Supreme Court or confirm a justice they know will be very conservative? Senate Democrats are rightly outraged that Republicans stole this seat on the Supreme Court through the unprecedented refusal to hold hearings or a vote on the nomination of Chief Judge Merrick Garland. Everything known about Gorsuch is that he will be a reliable conservative vote across a wide range of constitutional and statutory questions. Democrats remember that there were 48 votes against Clarence Thomas and 42 against Samuel Alito—and in hindsight, that it was a huge mistake not to block them through filibusters. But filibustering Gorsuch risks the Republican majority in the Senate changing the rules...

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