Berkeley Law Dean Calls Conservative Justices “Partisan Hacks”

Erwin Chemerinsky, dean of the UC Berkeley School of Law, has published a blistering opinion editorial entitled “Are Supreme Court Justices ‘Partisan Hacks’? All the Evidence Says Yes.” The column is unfortunately the latest example of how rage has replaced reason in our discussions of the Court. Chemerinsky previously declared  that “Congress would be totally justified in increasing the size of the court.” He has insisted that court packing is “the only way to keep there from being a very conservative Court for the next 10–20 years.”

Chemerinsky was responding to Justice Amy Coney Barrett recently saying that “Judicial philosophies are not the same as political parties” and insisted that the Court “is not comprised of a bunch of partisan hacks.”

That clearly set off many like Chemerinsky who wrote:

“Barrett’s protest against the justices being seen as ‘partisan hacks’ rings hollow when that is what they have become. And it is risible to say that ‘judicial philosophies are not the same as political parties.’ I would challenge her to give a single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party.”

It is a bizarre statement. The last two years have seen conservative justices like Kavanaugh, Gorsuch, and Barrett cast key votes with their more liberal colleagues.  That includes the rejection of all of the election challenges to the 2020 election that led to these justices being attacked by former President Donald Trump.

There are many other such examples. Justice Brett Kavanaugh for example voted to uphold the nationwide moratorium on the eviction of renters issued by the Centers for Disease Control and Prevention (CDC). His vote was key in the 5-4 decision in Alabama Association of Realtors v. Department of Health and Human Services. 

Likewise, Justice Neil Gorsuch not only supplied the critical vote in United States v. Quartavious Davis but wrote the opinion with his more liberal colleagues. In a 5-4 decision, the majority sided with a habitual offender in striking down an ambiguous provision that would allow enhanced penalties for a “crime of violence.” Gorsuch wrote “In our constitutional order, a vague law is no law at all.”

During the confirmation hearings of now Justice Amy Coney Barrett, I repeatedly objected to the clearly false narrative that she was nominated to vote to strike down the Affordable Care Act in the pending case of California v. Texas. The case was highly unlikely to result in such a decision and the Democrats knew it. The case was  focused on a highly technical and limited issues of severability. It would either be resolved on that limited basis or dismissed for standing. While Barrett might view the ACA as unconstitutional (as many do), I noted that she was more likely to dismiss the challenge or sever the individual mandate than to strike down the Act in the case. That is what she did in joined the 7-2 decision to dismiss the case.

In fact, the Court just finished a term marked by a long list of unanimous and non-ideological decisions.

The portrayal of voting pattern of conservatives as raw politics is an old saw on Capitol Hill. In the confirmation hearing for Kavanaugh, Senator Sheldon Whitehouse had raised this issue, asking, “When is a pattern evidence of bias?” Whitehouse noted a voting pattern by the five conservative justices who “go raiding off together.” Whitehouse denounced how the “Roberts Five” of “Republican appointees” join in such decisions and “no Democratic appointee joins them.” He simply ignored the “Ginsburg Four” on the other side of most of those opinions. Those liberal justices are not ideologues because they are treated as manifestly right.

None of this matters. It is not the reality but what is reported as the reality that drives polls and politics.

Most notable is the what Chemerinsky cites as the “most obvious example” of the conservatives acting like partisan hacks: the recent decision not to intervene to enjoin the controversial abortion law: “No one should have been surprised when the five conservative justices refused to enjoin the Texas law banning abortions after the sixth week of pregnancy even though it blatantly violates the constitutional right to abortion.”

Chemerinsky (and the Los Angeles Times) does not even mention the technical flaw leading to the decision.  The court’s order removed from the actual merits of the law and due to the fact that the challengers sued a state judge and clerk who are not actually tasked with enforcing the law. They were virtually randomly selected in a challenge that seemed more improvisational than procedural. Accordingly, the majority stated that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”  However, the majority emphasized that it was not upholding the law and acknowledged that “the applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue.”

Chemerinsky also does not mention that one of the conservative justices, Chief Justice John Roberts, voted with his more liberal colleagues.  However, even in his dissent, Chief Justice John Roberts admitted it is unclear “whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.”

None of that is mentioned. Instead, it is offered as the greatest evidence that the justice are just a bunch of political hacks — and by implication support the calls to immediately pack the Court with a liberal majority.

Chemerinsky also does not mention that Barrett is not the only justice objecting to this label. Justice Stephen Breyer has repeated pushed back on the left and rejected the claim that the Court was filled with rigid ideologues. He also opposes the calls for court packing.  The late Justice Ruth Bader Ginsburg also opposed such court packing.

What is most disappointing is to see a dean or any law professor engage in such personal and unsupported attacks on the Court. While the number of conservatives among the students at Berkeley may be small (and the number of conservatives on the faculty is even smaller), Chemerinsky is dismissing conservative jurisprudence as mere political hackery. He is also the President-elect of the Association of American Law Schools.

This analysis tends to fulfill a narrative rather than inform the readers. With all due respect to Chemerinsky and his extraordinary career, such columns fuel the age of rage where reason is increasingly a stranger to legal analysis.

110 thoughts on “Berkeley Law Dean Calls Conservative Justices “Partisan Hacks””

  1. With all due respect, Chemerinsky represents the political trap so many academic leftist lawyers have fallen into. They do not understand the Constitution or the law based on what the founding fathers tried to create or prevent. They are ill-prepared to be professors of law despite the many good things they may have produced.

    1. Not buying it. The guy is a Dean at a prestigious Law school, he knows exactly what game he is playing.

      1. “Not buying it. “

        Rusty, I don’t know what the “it” is. I agree that he knows what he is doing but he is a political hack despite his credentials as a legal academic. TDS is like drugs. It fries brains.

    2. S.Meyer, They understand the Constitution all to well and they are opposed to it because of it’s effort to give a voice to every man. Their philosophy his born of the belief that men should be controlled by the elite because they are the elite. All the despots of history have had the same mindset to control the masses because they are stupid to govern themselves. One would think that with the writing of the Constitution that this centralized government philosophy would lose favor, but alas the battle continues. The army of the deplorables will fight on.

      1. Yes, they understand the Constitution ,but that doesn’t mean they can apply that knowledge correctly. They think they can, and that is why so many of them come up with crazy explanations for their interpretations, but then in other circumstances their ideas conflict with one another.

        Their bias is so strong, they cannot apply the rule of law. They should not be academics.

      2. Thinker says:

        “Their philosophy his born of the belief that men should be controlled by the elite because they are the elite.”

        Next, I suppose you will argue that the Founding Fathers and Framers were not the elite of their day?

        1. JeffSilberman, the founding fathers were indeed the elite of their day but they did an amazing thing for their time. They were willing to give power to other men through a bill of rights. Contrast this with the French Revolution wear a bloody battle for power ensued. The French Revolution was a classic portrayal of the previous violent revolutions throughout history. To win power and then share it is the anomaly. The Constitution was born out of respect of ones fellow man rather than the state of thought that other men are inferior and not able to govern themselves but must be led by their superiors. Elementary dear Jeff. Elementary.

  2. I would challenge her to give a single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party.

    Sounds like the dean of the UC Berkeley School of Law is disgruntled that his legal philosophy is destined to continue to be a loser with SCOTUS for generations to come. That of course won’t stop him from pumping out lawfare professionals at odds with the constitution.

  3. The “Court” was packed a long, long time ago.

    There is no need for more than ONE Justice, other than regional coverage, as there can only be ONE “manifest tenor” of the Constitution which bears on a case.

    No “interpretation” is necessary as “interpretation” is actually anti-American, anti-Constitutional fraud and deceit.

    Justices have no power to modify law they disagree with, or to otherwise legislate.

    The only contrary force and corrective action for incongruous decisions is impeachment for corrupt and treasonous Justices who reject and deny the “manifest tenor” of the Constitution.
    _________________________________________________________________________________________________________________________________________________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton
    ________________

    “Why Do 9 Justices Serve on the Supreme Court?”

    The Constitution doesn’t stipulate how many justices should serve on the Court—in fact, that number fluctuated until 1869. Only since 1869 have there consistently been nine justices appointed to the Supreme Court. Before that, Congress routinely changed the number of justices to achieve its own partisan political goals, resulting in as few as five Supreme Court justices required by law under John Adams to as many as 10 under Abraham Lincoln.

    The U.S. Constitution is silent about how many justices should sit on the Supreme Court. In fact, the office of Chief Justice only exists because it’s mentioned in the Constitution under Senate rules for impeachment proceedings (“When the President of the United States is tried, the Chief Justice shall preside…”). It’s Congress, not the Constitution, that decides the size of the Supreme Court, which it did for the first time under the Judiciary Act of 1789. When George Washington signed the Act into law, he set the number of Supreme Court justices at six.

    Why six? Because Supreme Court justices in those days were also appointed to sit on federal circuit courts, of which there were 13 in 1789, one for each state. Each circuit court would be presided over by three judges: one district court judge from the state and two Supreme Court justices.

    “The justices had to spend almost the entire year traveling,” says Maeva Marcus, a research professor at the George Washington University Law School and director of its Institute for Constitutional History. “And the traveling conditions were horrendous.”

    To limit the geographical area traveled by the justices, the Judiciary Act of 1789 divided the circuit courts into three regions: Eastern, Middle and Southern. The reason that the first Supreme Court had six justices was simple—so that two of them could preside in each of the three regions. Marcus said that no one at the time quibbled about the fact that six is an even number, which leaves open the possibility of 3-3 split decisions. “They never even thought about it, because all the judges were Federalists and they didn’t foresee great disagreement,” says Marcus. “Plus, you didn’t always have all six justices appearing at the Supreme Court for health and travel reasons.”

    – History.com

  4. “THE SUPREME COURT IS SWORN TO SUPPORT THE CONSTITUTION, THE WHOLE CONSTITUTION AND NOTHING BUT THE CONSTITUTION, SO HELP IT GOD”

    Allow me to make it intelligible and simple for comrade Chemerinsky, the Supreme Court and the judicial branch.

    The entire communistic American welfare state is unconstitutional including, but not limited to, affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, Dept.’s Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc., and regulation of anything other than money, the “flow” of commerce and land and naval Forces is similarly unconstitutional.

    Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” meaning “ALL well proceed,” omitting and, thereby, excluding any power to tax for individual or specific welfare, redistribution of wealth or charity. The same article provides Congress the power to regulate ONLY money, the “flow” of commerce and land and naval Forces.

    Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the full taking of property under the principle of eminent domain.

    Property is either severally and completely private, or severally and completely public. No woman has ever been half pregnant and no principle in the Constitution is half absolute. For judges and Justices to deny that rights and freedoms are absolute for the benefit of individuals is deceptive, corrupt, treasonous, actionable and impeachable.

    Government exists only to facilitate the maximal freedom of individuals by providing security and infrastructure. Government, under the Constitution, has no power to dictate, direct, command or rule, except in a condition of invasion or rebellion when Congress may suspend habeas corpus. The Supreme Court is required by the Constitution to take an oath to support the Constitution. It is not the American, but the communist, mandate to provide “from each according to his ability, to each according to his need.” The Founders gave Americans the one and only thing they could: Freedom.
    __________________________________________________________________________________________________________________________________________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  5. As a woman whose law degree was earned way back in 1969 (when students were educated so they could practice law and earn a living doing it) and who “worked” at practicing law in the real world for almost 30 years … Chemerinsky is true to the observation that those who can practice law do so – while those who cannot, teach in law schools. Some quick research identifies him as a teacher/starter-up of yet another law school/law school dean whose “work” history lacks real world credentials. His politics are so very clear in this latest rant that it deserves immediate dismissal!

    1. SMART WOMEN

      Did you say “immediate dismissal?”

      So, if men are men and women are men, who makes the babies? Who makes Americans? The American fertility rate is in a “death spiral.” More Americans die than are born. If American women don’t make American babies, they don’t make Americans. If there are no Americans, there is no America. The U.S. population is being imported of foreign invader hyphenates. What, we’re not supposed to notice? The American segment of the population is now only 62.2% and falling (like the Washington Football team, America needs a name change, wouldn’t you say?). Where’s the future in extinction?

      I just love smart women.

      Don’t you?

      1. How many babies have YOU made George?

        You don’t love smart women. You’ve said you want women to lose the right to vote.

        1. Simply brilliant!

          Thanks for reading and thank you for evading the question.

          Is extinction resulting from an American fertility rate in a “death spiral” acceptable?

          Are you an actual American? What did the American Founders do?

          Can one persist in America and disagree with its Founders?

          They required that immigrants be “…free white person(s)….”

          They required voters to be male, European, 21 with 50 lbs. Sterling or 50 acres.

          They forcibly imposed no affirmative action, generational welfare, food stamps, WIC, TANF, etc., and divorce laws did not artificially and arbitrarily favor women and disoblige men.

          Apparently, the Founders thought making Americans was a good idea.

          If you disagree, why are you in America?

  6. Once again the left accuses the right of what they are doing. Please show me one case where Sotomeyer or Kagan or Ginsburg sided with the conservative wing. An extreme example is the eviction moratorium, a case that is OBVIOUSLY unconstitutional, where the left wing still voted politically rather than in accordance with the Constitution. We have seen the conservative justices continually vote with the left side but we NEVER see the left vote with the right.

    One more point regarding the stupidity of the Dean in this case: Claiming that the Court is too political and the remedy is to add FOUR Justices from the left.

    1. “Please show me one case where Sotomeyer or Kagan or Ginsburg sided with the conservative wing. ”

      There are lots. Start with all of the unanimous rulings.

      1. A unanimous ruling speaks not of one of the lefties voting with the right, it represents a case so undeniably one sided as to make dissent impossible. Show me one time where Sotomeyer, Kagan or RBG voted with the other 4 or 5 to make it a 6-3 decision. Show us one time where one of the lefties left the reservation and separated him or herself from the lefty pack. My point stands.

  7. Turley should think about the extent to which his criticisms apply to his own columns and his tendency to avoid in-depth legal analysis with a truthful discussion of the relevant facts: “It is not the reality but what is reported as the reality that drives polls and politics. … This analysis tend to fulfill a narrative rather than inform the readers. With all due respect to [Turley] and his extraordinary career, such columns fuel the age of rage where reason is increasingly a stranger to legal analysis.”

    The professor doth protest too much methinks.

  8. Almost daily we hear of this type of nonsense. Another hypocrite jumps up saying, LOOK AT ME I’M WOKE! These supposed Academics cannot separate Political affiliation from National Pride (Patriotism). Today’s example illustrates the Left’s incompatibility with a Democratic Republic. They have no concern of others rights if it’s not in their doctrine, continually raising false flags and outright lies to further their cause.

    Alexander Solzhenitsyn wrote in “Cancer Ward” ‘if decade after decade the truth cannot be told, each person’s mind begins to roam irretrievably. One’s fellow countrymen become harder to understand than Martians.’

  9. Academics like Chemerinsky care as much about the law as did his forebears like Trotsky. He is simply one of many of his ilk who seek to undermine American Constitutional Law in order to impose a one party state.. Nothing to be disappointed about,, because that is who he is down to his DNA.

    1. Alank says:

      “That is who he [Chemerinsky] is down to his DNA.”

      Charming. It’s not about his reason; it’s about his race.

  10. A Dean of Law who dors not understand the Rule of Law? Any wonder why we are are increasingly divided culture; the elitist have become self serving without any knowledge of historical context.

  11. “What is most disappointing is to see a dean or any law professor engage in such personal and unsupported attacks on the Court.”

    Why is this surprising? In a world in which government, and therefore politics, controls much of daily life, winning at all costs becomes a rational choice. Not moral, but rational.

  12. Mr. Turley, you are very astute man, but I think you are missing the obvious. Namely, Chermerinsky and his ilk are using a tried and true method to pull Republican-appointed judges leftwards. They are insulting them.

    “MR. Justice Oliver Wendell Holmes of the United States Supreme Court recently recalled a personal anec­dote connected with the late Gen. Benjamin F. Butler.

    Gen. Butler was on his way to Boston to try a case before Judge Shaw. I met him on the train, and asked if I might look at the notes on the case. Butler acquiesced. To my astonishment I saw written at the top of page 1, ‘Insult the Judge.’

    ‘You see,’ said Butler, in answer to my question, ‘I first get Judge Shaw’s ill will by insulting him. Later in the case he will have decisions to make for or against me. As he is an exceedingingly (sic) just man, and as I have insulted him, he will lean to my side, for fear of letting his personal feeling against me sway his decision the opposite way.’”

    The Green Bag, Vol. XXIII, pg. 105-6 (1911) (available at: https://upload.wikimedia.org/wikipedia/commons/9/94/The_Green_Bag_%281889%E2%80%931914%29%2C_Volume_23.pdf).

    Progressives have for decades consistently insulted conservative judges and justices, and the result has been a significant leftward departure from their heretofore judicial philosophies. It has succeeded far more than it failed. Scalia and Thomas being the only two, I can think of who were/are able to treat the barbs as unworthy of consideration.

    I doubt Chermerinsky is aware of the story. To quote Mr. Spock, “He’s intelligent, but not experienced. His pattern indicates …two-dimensional thinking.”

    By lacking experience, I mean his experiences are insular and almost entirely within the realm of academia.

  13. Chemerinsky is the law school dean where? Ahhh, UC Berkeley. That explains his position and mind you he is absolutely correct…just ask him. This is Berkeley and I assure you he is absolutely correct in his own mind and those of his two or three friends.

    1. Not really. Berkeley was known for political activism in the sixties. That was a way, way long time ago. The Berkeley campus, for at least the last 30 years has been jokingly called “U.C. Hong Kong” because of the large number of Asian engineering, computer sci and pre-med students. Sure, there are still some liberal arts student “activists” trying to live out the Berkeley stereotype of their grandparents’ era, but they are the minority. I doubt that Berkeley is any more liberal now than any other major university.

      1. ‘I doubt that Berkeley is any more liberal now than any other major university.’
        That last sentence can also be understood as meaning that most major universities have adopted the radical views which were once merely an outlier limited to Berkeley and a few others. Which is the real problem.

  14. It is true that judicial philosophies are not the same things as political parties. I think the real question to ask is whether a justice applies his judicial philosophy consistently, regardless of his political or personal preference for the outcome. Judicial philosophy, political party and personal preference may all diverge. For example, in Bostock, Gorsuch wrote the opinion expanding the meaning of sex discrimination beyond what the relevant legislation appears to have meant when it was passed, seemingly in violation of his judicial philosophy and contrary to the views of his political party but likely influenced by his personal preferences on what kinds of discrimination he believes should be prohibited. His opinion in that case certainly doesn’t fit with the view that the so-called conservative justices are partisan hacks. What Chemerinsky and other academics should be doing is explaining judicial philosophies and analysing whether the justices apply them fairly and consistently.

    1. The difference? Republicans worked hard to inw at the local level, Slowly gaining political advantage, State by State. When they had political power, they worked at nominating, judges with a strong constitutional understanding of federalism, and the constitutional limited power of the federal government.
      Democrats, always lazy, just short circuit the process, and go straight to an uniformed, court packing scheme.

  15. I have practiced law for a long time in Texas. I remember (decades ago) having a case before the Supreme Court that involved the construction of a “liberal” consumer protection law. The court’s opinion provided strong support for the statute and sided with the “liberal” plaintiffs. The author of the opinion was the court’s Chief Justice. It was not until years later that I learned of his personal political philosophy which was just to the right of John Birch. He rightfully saw his job as an objective interpreter of statutes and constitutions, not a promoter of a partisan agenda. Shame on the Dean. Under his leadership there is no telling how many partisan hacks that law school is turning loose on the legal system.

      1. “Jeopardy” should have this “smart” guy on tonight.

        Wait.

        Does “Jeopardy” impose unconstitutional affirmative action on contestants?

  16. Either Chemerinsky really doesn’t know the law and has been faking it all along, or, more likely, he’s the first shot across the bow of a Democratic campaign to “soften up” the masses for their eventual onslaught on the Court. We have seen this tactic in cases of war, where all the talking heads give interviews in sync about how we have to find those WMDs. This bombardment of misinformation worked so well for multiple administrations, that Dems can feel secure in using the same tactic when pushing dubious and dangerous partisan domestic policy. Expect to see more of it, and rest assured, it will get louder and more absurd the closer we get to 2022.

  17. Chemerinsky wrote; “Barrett’s protest against the justices being seen as ‘partisan hacks’ rings hollow when that is what they have become. And it is risible to say that ‘judicial philosophies are not the same as political parties.’ I would challenge her to give a single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party.”

    This is pure gaslighting preaching to the choir of the ignorant sheeple; keep them stupid so they can be manipulated by fear.

    Facts prove Chemerinsky wrong. Chemerinsky is either a willfully ignorant hive minded fool or is himself a partisan hack or he’s simply a liar pushing another false narrative; of course he could very well be all three.

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