Erwin Chemerinsky, the dean of the University of California, Berkeley School of Law, addressed a packed hotel ballroom at the InterContinental Mark Hopkins Wednesday to discuss the importance of the California Supreme Court and state constitutions in light of what he called a “new era” on the U.S. Supreme Court.
The dean spoke for a little more than 20 minutes at The 70th Annual California Supreme Court Luncheon hosted by The Lawyers’ Club of San Francisco Inn of Court. The sitting members of California’s high court were in attendance at the event, for which The Recorder was a media sponsor. What follows is a transcript of Chemrinsky’s remarks edited for style, length and clarity.
Chemerinsky: My thesis for the afternoon is simply stated: Now more than ever we need the California Supreme Court. Now more than ever we need our state courts. Now more than ever we need state constitutions so as to protect individual liberties to advance equality. In 1977, then-Justice William Brennan wrote an article in the Harvard Law Review urging the use of state constitutions to advance freedom and equality. He wrote that as he saw a change in the U.S. Supreme Court with four picks by Richard Nixon just confirmed in 1969 and 1971. You can only imagine what William Brennan would say and write today if he could see the current U.S. Supreme Court.
I’ll make four observations for you. First, I’ll start with the last term in the U.S. Supreme Court, the October term 2017. I think it was a pivotal year. It was the first year of a new era on the Supreme Court, an era without a swing justice. Last term the Supreme Court decided 59 cases with signed opinions after hearing oral argument. That is the fewest number since 1864.
I think the most revealing statistic of last term is that in those 59 cases, 19 were 5-4. In 15 of the 19, Justice Anthony Kennedy joined Chief Justice Roberts and Justices Thomas, Alito and Gorsuch in the majority. In none of those 19 did Justice Kennedy join with Justices Ginsburg, Breyer, Sotomayor, and Kagan to make a majority.
To put this in some context, Anthony Kennedy served on the Supreme Court for a bit over 30 years. In those three decades, when the justices were split 5-4, Justice Kennedy would vote with the conservatives about 75 percent of the time and the liberals about 25 percent of the time. In the term before last—the October term 2016—when the justices split on a case 5-4 or 5-3, Kennedy’s sided with the liberals 57 percent of the time and with the conservatives 43 percent of the time.
Last year he was with the conservatives 100 percent of the time and with the liberals 0 percent of the time in 5-4 decision. I know we referred to Anthony Kennedy as the swing justice, but last term he just didn’t swing. He stayed anchored with the conservative lines.
In this just-started era, there will not be a swing justice for the foreseeable future. Eras on the U.S. Supreme Court last a long time. We all know there was one in the 1890s until 1936. It was a time when a conservative court struck down over 200 federal, state, and local laws that protected workers and consumers.
The next era began in 1937 and continued through 1969 and all through this time the court became increasingly more liberal, especially under the direction of Chief Justice Earl Warren, who I might add, was a graduate of Berkeley Law.
The next era began in 1969 when Richard Nixon had his first two appointees confirmed to the Supreme Court. From 1969 to Feb. 13, 2016, the day Antonin Scalia died, there was always at least five and sometimes as many as eight justices appointed by Republican presidents. All during this time, there was a swing justice: A Lewis Powell, a Sandra Day O’Connor, an Anthony Kennedy who would join with the liberal justices in some of the most controversial, high-profile areas, like abortion, affirmative action, gay and lesbian rights.
This era too is likely to last a long time. Think of the ages of the conservative justices. Clarence Thomas is 70. Samuel Alito is 68. John Roberts is 65. Brett Kavanaugh is 53. Neil Gorsuch is 51. It’s certainly easy to imagine these five justices sitting together for another decade or two. So, I think the bottom line is when you think about the U.S. Supreme Court, now and for the foreseeable future, is that if you are politically conservative, this is a time to be jubilant. Conservatives have long wanted a solid, staunch conservative majority. They now have it on the High Court. If you’re politically liberal, maybe the most encouraging thing I can say is perhaps the Supreme Court will continue to decide fewer and fewer cases.
My second observation: Justice Brett Kavanaugh. Obviously, the most important change in the U.S. Court in the last year is the resignation of Anthony Kennedy who was replaced with Brett Kavanaugh. Most simply what this means is that an 82-year-old moderate conservative has been replaced by a 53-year-old who is more conservative.
I heard many remark that perhaps John Roberts will become the swing justice. He is ideologically the median justice. He is certainly a justice who is concerned about his legacy and the public esteem of the U.S. Supreme Court. I think there are areas where he will moderate the court while keeping it moving in a more conservative direction. I can almost certainly name some areas where the replacement of Anthony Kennedy with Brett Kavanaugh is going to make a dramatic difference in constitutional law and John Roberts is not going to be the swing justice in a liberal direction.
These are the areas where it’s going to be important for the California Supreme Court, for state supreme courts across the country to fill the void to advance individual rights and equality. Let me quickly mention three examples.
The first is abortion rights. In 1992, in Planned Parenthood v. Casey, Anthony Kennedy cast the fifth vote for the majority to reaffirm Roe v. Wade. In June 2016, in Women’s Health v. Hellerstedt, Justice Kennedy was part of a five-justice majority to strike down a Texas law that closed most facilities in that state where abortions were performed.
John Roberts has never voted to strike down any restriction on abortion in any context since coming onto the Supreme Court in fall 2005.
And one need only read the opinions of Brett Kavanaugh as a judge on the D.C. Circuit to realize he is going to be with the conservative justices when it comes to abortion. It means that there are now five votes on the Supreme Court to effectively, or maybe explicitly to, overrule Roe v. Wade.
Since 2010, 33 states have adopted or reformed new laws to place restrictions on abortion. If the Supreme Court upholds these laws, it will effectively make abortion illegal in about half the country, even if the court doesn’t overrule Roe v. Wade. But I’m not all sanguine. I think there easily could be five votes on the court to overrule Roe, which then means that any protection of abortion rights would then be left to state courts and state constitutions.
My second example is gay and lesbian rights. Again here I am on notice of the possibility that John Roberts could be the swing justice. Lest you believe that, you need only read his dissent in Obergefell v. Hodges, the majestic Supreme Court decision from June 6, 2015, that struck down state laws that prohibited same-sex marriage.
I gave predictions in the spring of 2015 that I thought John Roberts would be in the majority in invalidating the laws prohibiting marriage equality. I reasoned that John Roberts cared so much about his legacy he would want to be on the right side of history because everyone knows where history is going on this issue.
Not only was my prediction wrong, not only did John Roberts dissent, but he wrote an angry and vitriolic dissent. In fact, the only dissent that John Roberts has read from the bench since coming on the court in fall 2005 was in Obergefell v. Hodges. In one indication, our newest justice, Brett Kavanaugh, in an order issued by the court just last month—as you know President Obama issued an executive order permitting transgender individuals to serve in the military. President Trump not only rescinded but issued his own executive order preventing transgender individuals from military service.
Three federal district courts issued preliminary injunctions all saying the Trump executive order violated equal protection. Without waiting for a federal Court of Appeals decision, the Supreme Court stepped in and in a 5-4 order lifted the preliminary injunction, allowing the Trump ban on transgender military service to go into effect.
It’s extraordinary. Remember overturning a preliminary injunction involves finding an abuse of discretion. The five justices, of course, were the five conservative justices on the court, including Chief Justice Roberts.
There are several other issues to resolve regarding gay and lesbian rights. There are several cert petitions pending concerning whether sexual orientation discrimination is sex discrimination under Title VII. There’s another cert petition pending in terms of discrimination based on gender identity as a form of sex discrimination. In these and other issues, I think we’ll desperately miss Anthony Kennedy.
Did you know the majority opinion in every Supreme Court decision in history advancing the rights of gays and lesbians was written by Anthony Kennedy: Romer v. Evans in 1996, Lawrence v. Texas in 2003, United States v. Windsor in 2013, Obergefell v. Hodges in 2013. I think without Anthony Kennedy, in the light of what I just mentioned, if there’s going to be protection of gay and lesbian rights and transgender rights, it’s going to need to be from state constitutions and state laws.
The final example I mention is punishment in criminal cases. To be sure, Anthony Kennedy never joined the liberal justices to say the death penalty is inherently cruel and unusual punishment. But in so many cases Anthony Kennedy cast the decisive vote on a particular penalty to be cruel and unusual punishment under the Eighth Amendment. In Roper v. Simmons in 2005 Justice Kennedy wrote for the court, it was 5-4, that the death penalty for juveniles is cruel and unusual punishment. In 2008, in Kennedy v. Louisiana, Justice Kennedy wrote for the court 5-4 that the death penalty for the crime of child rape is cruel and unusual punishment. In 2010, in Florida v. Graham, Justice Kennedy wrote for the court 5-4 that it’s cruel and unusual punishment for a sentence of life without parole for a nonhomicide crime committed by a juvenile.
Without Anthony Kennedy, I do not see five votes on the court to limit punishment in these ways. If it’s going to happen, it’s going to have to happen under state constitutions.
My third observation is what about this year in the Supreme Court. This an unusual term. The point that makes it so is that the court has gone out of its way to avoid the most controversial, divisive, high-profile issues whenever possible. So, I would caution us all not to draw any conclusions about the newer Roberts court from what we see in May or June of 2019.
On Friday, Jan. 11, the justices met in their conference to decide the main cases to take this term. They had eight slots open for argument in the April calendar. They had an amazing array of possibilities. I mentioned, they had a couple of cases where there’s a circuit split on whether employment discrimination based on sexual orientation is sex discrimination in violation of Title VII. They had a decision from the Ninth Circuit affirming a preliminary injunction against President Trump’s decision of DACA. They had an Indiana law that imposed very substantial restrictions on abortion. There’s a decision in the New Jersey Supreme Court that said historic preservation laws could not apply to churches. They had a decision in the Second Circuit that involved New York law that substantially limited guns outside the law.
Do you know how many of those cases the court took on Jan. 11?
None of them.
They didn’t deny cert on that day in those cases, they simply relisted them. I think that’s because there was a conscious effort on behalf of the justices to help lower the profile this term. In light of a bruising Kavanaugh fight, the sense was that it was better for the court to do a bit less to affect public opinion.
But the court couldn’t completely stay away from controversial issues. There were a couple of cases heard this month in terms of whether federal courts can hear challenges to partisan gerrymandering and, if so, when it violates the Constitution. This is enormously important for our political system.
We all learned, maybe in civics class, that voters are supposed to choose their elected officials. Partisan gerrymandering means that elected officials are choosing their voters. The cases of partisan gerrymandering came from three-judge federal district courts where the Supreme Court was obligated to take and resolve the cases.
A very important case was argued in April over whether it was legal for the Department of Commerce to include questions about citizenship regarding the coming 2020 census. What’s involved here is up until 1960 there were questions with regard to citizenship on the census form. It was then thought that asking such a question would prevent a whole enumeration of the population because noncitizens, especially undocumented individuals, wouldn’t answer.
And so it’s been since 1960 that that question hasn’t been there. The Department of Commerce added it for the 2020 census. Initially, the federal district court said that this was so arbitrary and capricious that it violated the Administrative Procedures Act. And then a federal district court found that it was unconstitutional because it would prevent full enumeration of the population. The Supreme Court saw itself as having little choice but to take this up in light of the coming census and in light of the need to resolve the conflict over the census forms.
So the only other thing I will say about this term at the court is that many of the cases pose directly or indirectly whether a long-standing precedent should be overruled. In Gamble v. United States, which involves the double jeopardy laws, the Supreme Court has held since at least 1959 that the federal government and state governments are separate sovereigns. So the prosecution in one, if it leads to prosecution or acquittal, doesn’t preclude prosecution in the other. The only issue in Gamble is whether to overrule that.
Or one more example in a case that I argued at the court on Jan. 9 of this year, Franchise Tax Board v. Hyatt. The only issue in the case is whether the court should overrule Adams v. Hall, a 1979 precedent that says that a state can be sued in another state court. What was stunning to me when I stood at the lectern on that day is how many of the questions focused on precedent and stare decisis. At one point Justice Alito said to me, “How is stare decisis served by the following precedent in your case?” Then I talked about all the reliance there had been on Adams v. Hall. Justice Breyer then talked about two minutes about why precedent matters so much and then at the end he added, “Do you agree?” And I simply said, as casually as I could, “Yes.” To which, Chief Roberts said, “I thought that’s what you’d say.”
Then Justice Alito said, “Don’t you think you’d be better off in terms of public esteem overruling cases that have been wrongly decided rather than following it?”
And I said Brown v. Board of Education had to overrule Plessy v. Ferguson, but precedent matters in terms of the stability of the law. Justice Kavanaugh then said, “I think we should overrule precedent only when we find it to be egregiously wrong.”
I said, “I like that adverb and Adams v. Hall wasn’t egregiously wrong.”
But I think what all this talk about precedent wasn’t really about Adams v. Hall. I think these were the justices talking to one another about precedent and stare decisis. And it’s going to come up in things like abortion, affirmative action, gay and lesbian rights. It’s there we’ll see the future of the Roberts court. It’s areas like that that make state courts and state constitutions so important.
So, my fourth and final observation, did you know that since 1960, 78 years old is the average age when a Supreme Court justice has left the bench? As we’re together today there are two justices older. Justice Ginsburg is 86. Stephen Breyer will turn 81 on Aug. 18. I know that Justice Ginsburg has had health problems. I have heard many a remark that she appears so frail on the bench. I should tell you I met her in 1986 when she was a judge on the D.C. Circuit and she looked really frail then too.
And so for my students who want to see an expansion of rights and enhancement of equality, they are at times disturbed. The message I have to tell them is that there’s really just two choices: To give up or to fight harder.
Which means there’s just one choice: We have to fight harder and we have to fight better than we ever have before. And fighting better means predominantly new arguments and in different forums. Fighting better and harder than ever before is inevitably going to mean finally following what William Brennan said in 1977 [about] turning more to state constitutions, turning more to state courts. It is why, even though I talked about the U.S. Supreme Court, I think it inevitably leads to the conclusion that now we need the California Supreme Court, our state courts, the state constitution more than ever.