Patterico's Pontifications

6/30/2007

Erwin Chemerinsky Pens Dishonest Screed Against Justices Roberts and Alito

Filed under: General — Patterico @ 11:15 am

The sun rose again today. The sky is still blue. Politicians are still weasels. And Erwin Chemerinsky is still being dishonest on the pages of the Los Angeles Times:

THE SUPREME COURT term that ended Thursday confirmed exactly what many people had feared: that the testimony given by John Roberts and Samuel Alito at their confirmation hearings just months earlier was a lot of baloney.

During those hearings, the two presented themselves as open-minded jurists lacking an ideological agenda. Roberts likened a Supreme Court justice to an umpire, a neutral arbiter whose personal political views are irrelevant to decisions. Both Roberts and Alito promised fidelity to the court’s precedents.

But instead, Chief Justice Roberts and Justice Alito have behaved exactly as their opponents predicted. There was not one case this term in which the court was not ideologically divided, and not one in which Roberts and Alito did not vote for the result that their conservative backers would have wanted. In virtually all of these cases, they were joined by justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Chemerinsky is saying that Alito and Roberts dissembled, even lied, in their confirmation hearings. This would be a serious accusation — if it came from a serious person. But Chemerinsky is not a serious person.

Hey, Erwin! What you apparently fail to realize is that not everyone is an ideological hack like you. The conservative justices have a principled view of what the Constitution means, and they have voted according to those principles. They follow principles of judicial conservatism, not political conservatism — and they never promised anything different.

The disconnect between Erwin’s Reality and Actual Reality is at its starkest when he claims:

At their confirmation hearings, both Roberts and Alito presented themselves as compassionate, insisting that they would not ignore the needs and rights of the powerless.

Chemerinsky proceeds to tick off cases where he complains that the powerless lost. Chemerinsky offers no legal argument that any of the cases was wrongly decided. His complaint is simply that the powerless lost. By submitting these arguments as “proof” of the Justices’ alleged dissembling, Erwin implies that Justice Roberts and Justice Alito promised to uphold the “needs and rights of the powerless” in any given case, regardless of the law.

This is arrant nonsense, as Erwin well knows. What Justices Roberts and Alito promised was to uphold the law, regardless of whether the law went for or against the powerless. Don’t believe me? That’s why we have transcripts. From Roberts’s confirmation hearings:

ROBERTS: I had someone ask me in this process — I don’t remember who it was, but somebody asked me, you know, “Are you going to be on the side of the little guy?”

And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution. That’s the oath.

The oath that a judge takes is not that, “I’ll look out for particular interests, I’ll be on the side of particular interests.” The oath is to uphold the Constitution and laws of the United States. And that’s what I would do.

That’s pretty clear, isn’t it, Erwin? And Justice Alito said much the same thing:

ALITO: Every person has equal rights under the law in this country, and that involves includes people have no money, that includes people who do not hold any higher or prestigious position, it includes people who are citizens and people who are not citizens.

Everybody is entitled to be treated equally under the law. And I think that’s one of the greatest things about our country and about our legal system.

That’s not a promise to uphold the needs of the powerless. It’s a promise to treat them equally under the law.

Moreover, Roberts’s and Alito’s promise to show appropriate respect for precedent does not mean that they promised to uphold every previous decision, regardless of its fidelity to the Constitution. Chemerinsky cites changes to precedents on partial-birth abortion, campaign finance reform, and forced integration — but each of these changes brought the Court in line with the Constitution and the precedents that have properly applied it.

Chemerinsky’s piece establishes one thing, and one thing only: that it’s impossible for a hack like him to understand people who are motivated by principles unrelated to political ideology.

28 Responses to “Erwin Chemerinsky Pens Dishonest Screed Against Justices Roberts and Alito”

  1. “Chemerinsky’s piece establishes one thing, and one thing only: that it’s impossible for a hack like him to understand people who are motivated by principles unrelated to political ideology.”

    Syep away from the pocket mirror and nobody gets hurt.

    David Ehrenstein (e5c483)

  2. Could you e-mail your post to Chemerinsky? I simply don’t understand how anyone who’s as prominent as he can say such obvious garbage and expect others to take him seriously. I’m thinking maybe no one ever confronts him on this.

    Alan (9ea30d)

  3. Politics vs. Judicial Principle.

    Strange that the court regularly breaks down to the same 5-4 decisions with both sides nearly always voting together. Oh, I see. The minority is
    POLITICAL and the majority only uses judicial principle. Now you’re making sense, Patterico.

    Semanticleo (10a7bd)

  4. I’m always amused to realize that even though I spend much of my time defending adversarialism as a system I still find myself annoyed when people actually have debates by using whatever means are at their disposal to defend assumptions that no manner of actual logic will ever override.

    There are plenty of other commentaries on the gamesmanship of Alito and Roberts, and even other points made in that LA Times op-ed, but you found a low hanging fruit and you took a swipe at it. I suppose you give yourself a lot of credit for that too, as you do for your predictions.
    Why not engage the substantive points? engage Balkin or Tushnet. Engage Scalia, who’s been expressing nothing but contempt for what he considers hypocrisy and cowardice.
    At least quote Sunstein, who comes off as a softie on all this. But Brian Tamanaha responds to Sunstein

    In their respective confirmation hearings, Justice [“I call balls and strikes”] Roberts and Justice [“A judge’s duty is to follow the law”] Alito promised that their decisions would not be based upon their political views. To many observers that sounded disingenuous or naïve, but it is the correct position to take. It suggested that they would judge with restraint and self-awareness, and it confirmed their recognition that they are a court of law, not the Supreme Political Council. Nonetheless, it did not take long before Justices Roberts and Alito, along with their conservative cohorts, embarked upon their rightward constitutional march, slowly at first, then picking up the pace at the end.

    Even Scalia characterized Roberts’ minimalist style as a fraud, writing “This faux judicial restraint is judicial obfuscation.” If Scalia is willing to tell it like it is—at least with respect others—then why should we buy into the notion that, as Sunstein put it, “Alito and Roberts typically seek to preserve the court’s precedents.” Striving to circumvent or gut a precedent while maintaining its facade is the opposite of seeking to preserve a precedent.

    AF (4a3fa6)

  5. Chemerinsky is simply one of those law school blowhards who realizes that the whole Robert Bork confirmation precedent means that he will never, never, never have a shot at a seat on the Supreme Court, so he is reduced to taking potshots at his legal betters. There is probably a moment or two in the dark recesses of his mind where he thinks to himself, “Wow, if I hadn’t spent my whole academic career carrying water for every trendy left-wing cause, maybe, just maybe I could have been an Associate Justice.”

    JVW (b44a2c)

  6. Maybe someone could comment on an actual case, like Panetti v. Quarterman?

    From what I can tell, Alito and Roberts think a crazy man should follow proper procedures or die.

    Talk about a catch 22.

    alphie (015011)

  7. There was not one case this term in which the court was not ideologically divided, and not one in which Roberts and Alito did not vote for the result that their conservative backers would have wanted. In virtually all of these cases, they were joined by justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

    This is demonostrably false:

    I made a quick run through the 2007 term’s 71 decisions and counted 26 opinions which were unanimous at least as to the judgment and 21 which were decided 5-4. Kennedy was the only Justice in the majority on all 5-4 decisions. I also found 10 cases in which there was but one dissent (Thomas 2, Scalia 2, Souter 2, Stevens 4). [This was, as I said, a quick perusal, so it’s possible any of these counts is off by 1 or 2, but the point remains.]

    The slapdash reference to 5-4 decisions, which people tend to assume automatically fall along hard ideological lines, obscures the more subtle nuances of the Court’s decisionmaking. See, for instance, Phillip Morris v. Williams and James v. US, both 5-4 decisions in which Alito, Roberts, Kennedy, Souter, and Breyer were the majority, with Scalia, Stevens, Ginsburg, and Thomas in the minority. See also, Marrama v. Citizens Bank of Massachusetts, Massachusetts v EPA, Smith v. Texas, Panetti v. Quarterman, 5-4 decisions in which Kennedy joined the “liberal” wing and the “conservatives” lost. And see Zini v. Dept. of Education, a 5-4 decision in which Breyer, Stevens, Kennedy, Ginsburg, and Alito were the majority, with Thomas, Roberts, Scalia, and Souter in the minority.

    Thus, fully 1/3 of this term’s 5-4 decisions went in favour of the “liberals,” something I very much doubt commentators decrying the “right-wing slant” of the Court have bothered to mention.

    Dodd (aa4f24)

  8. Good lord, did you unload on that guy. However, when someone deserves a rhetorical lashing they should get a rhetorical lashing.

    I cannot stand the constant braying of the left elite that conservatives that they don’t do anything to protect the “little guy”, whoever the hell that is. Usually it’s someone poor to whom they are currently pandering.

    But in reality everyone is a little guy compared to the federal government. Thank God for judicial conservatism, or the lefties would have The Nine interpreting the Constitution like Marx and Engles.

    Josh (bd34ac)

  9. This is the kind of intellectual dishonesty garbage from Chemerinsky that led me to quit reading him long ago.

    Robin Roberts (6c18fd)

  10. Duke’s loss is LA’s gain.

    Addition by subtraction, and vice-versa.

    wls (077d0d)

  11. Only right-wingers can accuse their opponents of being politically motivated, Robin?

    alphie (015011)

  12. Addition by subtraction.

    Duke’s loss is USC’s gain.

    wls (077d0d)

  13. Still incoherent Alphie?

    Robin Roberts (6c18fd)

  14. Pat, I am shocked that you could be so cruel and unfeeling towards Prof. Chemerinsky.

    Sir, have you no humanity?

    To be so disrespectful towards a person that everyone on the West-side knows is the second greatest legal mind in America (bow head to almost-Justice Tribe) shows your extreme pettiness.

    Keep up the good work!

    Another Drew (8018ee)

  15. The conservative justices have a principled view of what the Constitution means, and they have voted according to those principles.

    By which I’m sure you meant to include Clarence Thomas and his immortal concurrence in the “Bong Hits” ruling:

    In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students. And courts routinely deferred to schools’ authority to make rules and to discipline students for violating those rules.

    Can anyone imagine Thomas holding the same view had the student’s banner proclaimed a pro-life stance?

    steve (f822cb)

  16. So, I guess if a case came up where a court, for no good reason, decided to give all of Bill Gates’ money to “the poor”, Erwin would uphold, no matter what the issues of law? Or does he just mean that he’d try very, very hard to come up with any old handwave that allowed him to do so?

    Or, well, WTF does he mean?

    Kevin Murphy (0b2493)

  17. steve wrote: Can anyone imagine Thomas holding the same view had the student’s banner proclaimed a pro-life stance?

    Do you honestly think Justice Thomas is unaware that this case will be cited in future cases regarding students’ speech rights, and that it may very well include pro-life students’ speech?

    L.N. Smithee (89f512)

  18. “Thus, fully 1/3 of this term’s 5-4 decisions went in favour of the “liberals,” something I very much doubt commentators decrying the “right-wing slant” of the Court have bothered to mention.’

    Any ‘cites’ for your stats?

    Fully one-third in favor of ‘liberals’ means
    2/3 in favor of ‘conservatives’. The most critical
    individual rights cases being among them.

    Semanticleo (10a7bd)

  19. The most critical
    individual rights cases being among them.

    Well, in my non-lawyerly opinion, I’d say stripping way the collectivist “right” to assign children by race to public institutions is certainly a decision upholding critical individual rights.

    Darleen (187edc)

  20. Can anyone imagine Thomas holding the same view had the student’s banner proclaimed a pro-life stance?

    I have no doubt whatsoever that his position would be exactly the same.

    As I say, I understand that’s hard for people to believe — but I believe it.

    It helps to read the opinions.

    Patterico (2a65a5)

  21. Any ‘cites’ for your stats?

    SCOTUSblog has the visual breakdown.

    It looks like, from 24 5-4 decisions, 13 had Kennedy voting with all four conservatives, and 6 had Kennedy voting with all four liberals. Others were some mixture.

    Fully one-third in favor of ‘liberals’ means
    2/3 in favor of ‘conservatives’. The most critical
    individual rights cases being among them.

    The winners of the cases decided by the liberals would no doubt disagree with your assessment of their importance. It’s life or death for some of them — and sets precedents for other such cases.

    Patterico (2a65a5)

  22. “The winners of the cases decided by the liberals would no doubt disagree with your assessment of their importance.”

    Sorry Pat, but it’s not about individual cases its about the past and future direction of the law. That’s what defines significance.

    nice try though.

    AF (4a3fa6)

  23. As Patterico says, if you think that Justice Thomas’ opinion would change based on a “pro-life” message being at issue, you really don’t understand Justice Thomas at all. I don’t think you have to agree with him, but failing to understand him is inexcusable.

    Robin Roberts (6c18fd)

  24. L.N. Smithee,

    Do you honestly think Justice Thomas is unaware that this case will be cited in future cases regarding students’ speech rights, and that it may very well include pro-life students’ speech?

    The opinion specifically singled out an exception for drug speech, so your concern is unfounded.

    Pablo (99243e)

  25. Paraphrasing, I recall when asked asked if he would rule fairly, Roberts replied that he would rule justly and if someone was looking for fairness they should go to the legislature.

    As I think it should be.

    Dave in San Diego (732bef)

  26. The main-stream left-wing news media are like the horns of a steer A POINT HERE A POINT THERE AND A LOT OF BULL IN BETWEEN

    krazy kagu (5006b4)

  27. Erwin Chemerinsky, is he the same guy who’s bringing sexy back?

    cts22 (f9d014)

  28. cts22, ROFL, I assure you he’s not.

    Robin Roberts (6c18fd)


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