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. True to form, the New England Journal of Medicine has lobbed their bomb at SB8, written by a JD at University of Wisconsin Law School, Madison. From her faculty page bio:

    “Ms. Charo was born in Brooklyn, NY. She is fond of poker, foreign language study, cats, home renovation, Harry Potter books, old movies, roller coasters, salsa music, Jane Austen novels and Star Trek.”


    Vigilante Injustice — Deputizing and Weaponizing the Public to Stop Abortions
    Professor R. Alta Charo, JD

    We should all be worried when a state commandeers women’s bodies for gestation but opposes the Affordable Care Act and refuses Medicaid expansions that would provide health insurance for the children they are forced to carry and deliver. We should all be worried if the next trend in Supreme Court decision making is deeming harmless the loss of constitutionally protected reproductive rights. And we should all be worried when a state deputizes its entire population to harass health care providers, frighten friends and family, and isolate pregnant women.

    S.B. 8 is simply vigilante injustice.

    We should be unfazed that Alta uses histrionics and gaslighting, rather than logical, cogent arguments rooted in philosophical thought.

  2. If you spend even a minimal amount of time listening to people like Chemerinsky and 98% of the so-called scholars at UC Berkeley, it becomes readily apparent that partisan hacks only occupy the opposite end of the political spectrum from these vaunted intellects. Partisan hacks on the left don’t exist. It never ceases to amaze me that these people spout this mantra day in and day out without any sense of irony or reflection. It’s damn embarrassing to be an employee at this institution of “higher education” (aka: propaganda factory). They’re right, and anyone who disagrees is wrong. Case closed. So much for free speech, debate, democracy.

    1. Emanuelle Goldstein says:

      “If you spend even a minimal amount of time listening to people like Chemerinsky and 98% of the so-called scholars at UC Berkeley,”

      Only 2% are “real” scholars? Those being Conservative I presume. The 98% are fake scholars?

      This is your understanding of Turley’s article about Chemerinsky?

  3. By and large, the only partisan hacks remaining are on the left, and these continual attacks on our intelligence and integrity will not bode well for them. I am certain they are aware of their tenuous position; it’s the only explanation for the desperate and mad power grabbing and flouting of law by the modern Democratic Party.

  4. When you point the finger of blame, there are four fingers pointing back at you. This old saw seems particularly apt in this case where raw politics seem to be motivating the accusations of raw politics. Mirror mirror on the wall, who’s the biggest hack of all?

    1. Regardless of what fingers point what direction – we can ascertain the magnitude of each parties political corruption by THE FACTS.

      Look at what each party told you was true, what the media told you was true, that has subsequently proven to be obviously false.

      Why do you trust those who have mislead you ?

  5. Turley sums up his post:

    “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.”

    Fuel the age of rage? If that is what concerns Constitutional scholar Turley, what do we make then of Turley’s Fox brethren, Mark Levin, another Constitutional scholar, who goes on tirades unlike anything seen on TV before:

    Turley complaining about the RAGE in our media without ever mentioning Levin by name? How could Turley possibly defend his turning a blind eye to that unhinged display? What are we to make of it but hypocrisy? How can his criticism be taken seriously?

    What intrigues me is the inescapable soul searching that must plague Turley as he appears on Hannity’s show pretending to be oblivious to the fact that Hannity is deliberately fueling the rage which he steadfastly condemns!


    1. Hey Silberman, you’re experiences Fox News fog and the fog never lifts. On subject please! What say you to Justice Ginsberg and Breyer being against packing the Supreme Court. Little to say as usual. Here’s something to blow the lid of your top. Supreme Court left leaning Justices don’t think that packing the court would be a good idea. Doesn’t quite jibe with your far left see out of one eye world view.

      1. Think,

        Like Turley’s never-ending decrying of what he has coined “the age of rage,” and his correctly pointing out Liberals who engage in it, I, likewise, will NEVER cease harping about Turley’s own hypocrisy in profiting on the Fox rage which he does NOT condemn.

        Now, if you can’t handle that fact, may I suggest you ignore my contributions. But there are a few non-Trumpists here who appreciate my efforts, and I will continue to serve them, like it or not.

    2. Hey Silberman, the Professors post is about a Law Dean who is demeaning members of the Supreme Court and you somehow segue into Fox News. One wonders if it bothers you at all that this man calls Supreme Court justices political hacks. Especially when Justices Breyer and Ginsberg voiced that they were against packing the court. Silberman, we look forward to some comment from you of some consequence. Instead we get the Fox News diatribe for yet another day. Substance please, if you are capable. ??

      1. Think,

        I have said repeatedly that I don’t take issue with the vast majority of Turley’s legal opinions because he is on my side, that is, he is not a Trumpist. If I dispute Turley’s opinion, I am not shy to say so.

        I DO take issue with Turley’s contention that Little Brother should act in the same manner as Big Brother. I believe the only way our country is going to diminish our “age of rage” is to refuse giving public platforms to those who rage. Not by silencing their ability to speak; rather, just by ignoring them by turning one’s back and politely walking out of earshot. Good speech is ineffective against liars. Turley should acknowledge that fact.

        Now that I have answered your question, will you be generous enough to answer mine?

        Since Fox has been sued for defamation, Fox has ceased reiterating the “Election was stolen” narrative. Trump lawyers are no longer welcome to appear on Fox to speak their mind. Mike Lindell pulled his advertising on Fox because it would not allow him to advertise his cyber symposium:

        They have been censored! Trump and his enablers have to resort to appearing on Newsmax and OAN to be heard.

        Would you not say that Fox News is depriving Trump and Lindell of their freedom of speech? And is it not hypocritical that our free speech maven Turley has NOT lambasted his very own network for silencing them?

        1. “They have been censored! Trump…”

          Trump has appeared on Fox recently as have many people that support him. Fox has made a judgement about a case that might be tried. That case is old news and old news is only repeated on CNN and the other left-wing shows. You sound pretty ignorant.

        2. Jeff, not going to get into the JT hypocrisy debate again. Just have a simple question. Do you think that because the SC now ” leans” conservative, that justifies ” packing” the Court? With the definition of ” packing” being EXPANDING the number of sitting Justices, not having Justices that are perceived to have a certain ideology?

          1. Paul,

            I like Turley’s plan to increase the number of Justices by 2 every couple of years to increase the number so that the Court is like our Federal Circuit Courts in size.

            1. Ok I don’t have a problem with that. As long as it is done consistently. Without regard to which party controls the White House. But it has to have limits. Just like the number of Circuits.
              I don’t think that will happen though. In the absence of Turley’s suggestion, do you think the Court should be expanded now.
              And if no, would you change your opinion if the Court reverses Roe?

              1. Paul,

                I hope the Court reverses Roe v. Wade. I want women to use the power of their “you know what” to persuade men to pass a Constitutional Amendment to enshrine the right to privacy over one’s body. Under which, you can refuse the vaccine; but you will have no right to be admitted anywhere until you take it. Just like one has the right to be a drunk but not to threaten everyone by driving a car.

                1. WOW! I didn’t expect that. I don’t think that the Court will reverse Roe. You know, stare decisis. I know that the Court has reversed itself before but I don’t think that will be the case here. And if it does, I think your hope for an Amendment is wishful thinking , at best. Two thirds of both houses? Two thirds of the states? No way.
                  This is probably the only prominent political/legal thing in my life that I am conflicted on. As you know I am pretty straight forward in expressing my opinions.
                  But I have a question .Scott Peterson was convicted of a double murder because he murdered his pregnant wife. Ergo, the baby was a living human being.
                  Then why is aborting a viable fetus/ baby not murder also? The key word here being viable

                  1. Paul,

                    Women used their inherent sexual power to get the vote. I believe that they will convince their husbands and boyfriends to vote for their personal autonomy over their bodies if they know what is good for them. If only certain States pass such a Constitutional Amendment or otherwise refuse to outlaw it, women will move their families there. I believe states like Texas will regret such prohibitions in the long run.

                    I accept viability as the only scientific dividing line; anything before is a matter of religious belief.

                    1. To begin with, the Texas law will not survive when it is examined on the merits. The dismissals thus far conform to the accurate application of procedural review, but once there’s an actual litigant, the courts will strike it.

                      “I accept viability as the only scientific dividing line; anything before is a matter of religious belief.” What precedes the semicolon is a statement of opinion; what follows in an unsupported statement of fact, and incorrect. If there is a brightline factor to consider it would be: what makes a human being a human being. That is not necessarily a question of faith but can be a question of science. I don’t know the answer. Some religions have offered an answer; some scientists (in their individual capacities) have offered a different answer. Science, as a whole, has not and cannot.

                      If you really believe that wives and girlfriends are going to withhold sex in order to compel their husbands and boyfriends to vote a certain way, you might not know very much about human nature. That might be a short term (and very vocal) outcome but it won’t last. No woman I have ever met is a single issue voter, even the most militant pro-abortion women. That’s anecdotal, for sure, but I’d wager it’s broadly applicable.

                      Finally, remember: the majority opinion in Roe was seven men. I have always known more men than women who are pro-abortion (anecdotal, I’m aware) because they prefer not suffering consequences (usually child support) from dispersing their seed far and wide, and a liberal abortion regime allows them to do just that.

                    2. Mr. White says:

                      “I accept viability as the only scientific dividing line; anything before is a matter of religious belief.” What precedes the semicolon is a statement of opinion; what follows in an unsupported statement of fact, and incorrect.”

                      I appreciate the fact that you are reasoned and know your punctuation marks. I don’t have a dog in this fight since I am a man. I hope that we can debate other issues which more interest me.

                    3. You don’t have a dog in this fight? You argue as if you do.

                      Do you feel that way because you lack the equipment to become pregnant? While reasonable, I don’t see that as dispositive. For those who are opposed to abortion, consequential to a belief that a fetus is a human life, even a male would have a dog in that fight, as the termination of said human life, absent due process, would be akin to homicide. For those who favor abortion, consequential to a belief that a fetus is not a human life, even a male would have a dog in that, as the termination of said entity, even absent due process, would benefit him by relieving him of the potential for significant financial burdens.

                      I think you do have a dog in this fight. It matters not to me which dog. My goal was to point out the fallacy in your reasoning that only religion suggests that anything other viability is the fulcrum for what is human life and what is not.

                      I know atheists who oppose vociferously oppose abortion, and their logic actually makes more sense than that of a religious person:

                      Religious Opponent – I am opposed to abortion because a fetus is a human life with a soul BUT if the fetus is terminated, as it was not born and does not have original sin, it will go to heaven for eternity.

                      Atheist Opponent – I don’t know if a fetus is a human life, but because there is no soul and no heaven, you only get one shot at life, and if you never make it out of the womb, that is no shot at all.

                      Religion offers abortion opponents an “even if” acceptable outcome for the fetus; atheism does not – you’re one and done.

                      Your assertion that only religious belief can form the basis of opposition to abortion, pre-viability, is illogical.

                      As for a debate, I’m game. Any topics in mind?

                    4. Mr. White,

                      Unlike 98% of the commentary here, I need to think about your remarks. I will get back to you a bit later. Thanks for your patience.

                    5. Mr. White,

                      Atheists and religious people are unlikely ever to agree in theory when a fetus is deemed to be a human being under the law. Viability though arbitrary is at least determinable scientifically or medically, and thus could serve as a compromise where one is unavoidable.

                      I don’t believe a woman has a moral or legal obligation to bring to term a fetus which was placed in her womb *against her will*. Let me give you a hypothetical-

                      Suppose Trump was dying from an organ failure (no, not his brain), and the only means by which to save him was to find an individual whose blood type matched his. The secret service found such an individual, drugged her, transported her to a hospital and hooked her organ to Trump’s intravenously so that he could share hers to sustain his.

                      Upon waking and discovering her plight, suppose the doctors informed her that she only needed to remain so bed-ridden for 9 months, would she be within her *legal* rights to unhook herself from Trump thereby causing him to die.

                      I used Trump instead of Biden in this hypothetical to make it an even harder moral dilemma for the Trumpists!

                      Hell, they refuse to even take a vaccine to save other people’s lives….

                    6. You may be correct that it is unlikely that, in general, an atheist and a religious person are unlikely to agree when human life begins. The example I offered was, admittedly, anecdotal and not intended to represent the whole. It was offered because your initial statement suggested, if not categorically stated, that the only rationale that people who would suggest that viability was not the pivot point at which life began would be because of religion. I showed you an alternative.

                      You have, unfortunately, utilized a strategy in formulating your analogy that far too many people are wont to do – creating a strawman out of a caricature of your political opponents. Do you actually know any people who voted for Donald Trump? I know several, although none of them are vocal about it, because they don’t want to lose their jobs (a valid concern in the Twin Cities metro), and none of them would actually actually tolerate the situation you described. Your analogy is also not analogous because the person “hooked up” would have recourse to the law, herself. The question about whether she has bodily autonomy is mooted by that very fact.

                      It’s very interesting that you chose to rely on a body autonomy argument, when in your final sentence you denigrate Trump supporters, who you, incorrectly, believe are inordinately vaccine hesitant. Blacks, not known to be Trump supporters, are the most vaccine hesitant, by race. ( For Black Health Care Workers, the hesitancy is even higher, “Black HCWs had almost 5-fold higher odds of being hesitant to get a COVID-19 vaccine compared with White HCWs….” ( Furthermore, a recent study showed that those with the highest level of education were the most vaccine hesitant ( I don’t recall Donald Trump garnering a lot of support from PhDs.

                      Additionally, you appear to be conflating vaccine hesitancy with opposition to vaccine passports. The two are distinctly different, and as little as one year ago, even the most vehement proponents for vaccine passports were decrying the idea as absurd. At no other time in the United States, or any other country whose legal system is derived from English Common Law, has a large portion of the populace been compelled to produce proof of having received medical treatment in order to gain access to a place or employment.

                      There is a theory that the Republicans have moved so far to the right that they are no longer in the mainstream; that notion is absurd:


                      Democratic Party Position on Medical Privacy: You have the right to privacy over ALL of your medical conditions and treatments
                      Republican Party Position on Medical Privacy: You have the right to privacy over ALL of your medical conditions and treatments


                      Democratic Party Position on Medical Privacy: You have no right to privacy over SOME of your medical conditions and treatments
                      Republican Party Position on Medical Privacy: You have the right to privacy over ALL of your medical conditions and treatments

                      I saw a shift, but it wasn’t the Republicans who shifted.

                      I suspect that there will come a time when a proposal will be made to require those who haven’t been vaccinated to wear some type insignia or badge to identify themselves, rather than requiring the vaccinated to prove their compliance.

                      Finally, as regards the legitimacy of vaccine mandates and body autonomy, please consider the following:

                      1. There are a large number of people in the United States with diseases that affect their kidneys, which could be remedied by kidney transplants
                      2. Treating these people burdens the US health system due to cost and utilization of resources
                      3. People only require one kidney to survive and live a productive life
                      4. There is a dearth of live kidney donations
                      5. The federal government mandates all healthy adults with two functioning kidneys to donate one of their kidneys so as to help those who require dialysis or other expensive treatments and unburden the health system
                      6. The donation is voluntary but employers (with 100 employees or more) are prohibited from employing people who have two kidneys unless the employees undergo weekly testing to prove they are not healthy enough to donate a kidney
                      7. If an employer fails to follow this rule that employer is subject a $14,000 per violation fine.

                      Are you onboard? If so, did you know that you can donate a portion of your liver and still survive? And what about people who need bone marrow?

                      If you think my hypothetical is absurd, remember that until this summer, everyone agreed that vaccine mandates were unconstitutional. Suddenly it’s become an alt-right, fascist position.

                      Trump’s supporters may be among the vaccine hesitant and may be strongly opposed to vaccine mandates and vaccine passports, but that is not because of Trump. It’s because they are more likely to be independent types who are wary of the government making decisions for them. If you have any experience with the administrative state, you might feel the same way yourself.

                    7. Another great post Francis!

                      I suspect that there will come a time when a proposal will be made to require those who haven’t been vaccinated to wear some type insignia or badge to identify themselves, rather than requiring the vaccinated to prove their compliance.

                      Well apparently we have some fine folks at the FDA, like Taylor Lee here, that is ready to do just that. He even has some suggestions for dealing with those that are hesitant to get the vaccine:

                      – You get blow-darts of J&J (Johnson&Johnson Covid Vaccine) – and like go to the unvaccinated and blow it into them. Just shoot everyone.

                      -Drones… Drone darts. Easy. Like the funding’s there. Its easy to do. At this point i dont care about your bodily autonomy.”

                      -When the interviewer asks Lee how they will be able to reach the hesitant minority population to convince them to take the jab, he offers an unsurprising, but horrific solution – “It’s fine, we will go for the whites first.”
                      Which according to him, will be no problem for the liberal propaganda machine.

                      “We’ll post video campaigns about doing it to whites first, and then they can’t call it [racist]” I mean, Census goes door-to-door if you don’t respond, so we have the infrastructure to do it. It will cost a ton of money, but at that point there needs to be a registry of people who aren’t vaccinated. – Although that’s sounding very [Nazi] Germany at the same point.


                    8. Mr. White says:

                      “creating a strawman out of a caricature of your political opponents. Do you actually know any people who voted for Donald Trump?”

                      I don’t know any Trumpists personally. The ones I have witnessed and debated here have revealed how lucky I have been to have not become acquainted with any Trumpists. I don’t use Trumpist as a pejorative. It is simply a metonym for “Trump supporter.”

                      You say:

                      “Your analogy is also not analogous because the person “hooked up” would have recourse to the law, herself. The question about whether she has bodily autonomy is mooted by that very fact.”

                      I don’t follow you. Trump is the fetus in my hypothetical. The woman would be within her legal rights to unhook Trump come what may. Trump would not have any legal right to stay connected to the woman no matter what.

                      You say:

                      “It’s very interesting that you chose to rely on a body autonomy argument, when in your final sentence you denigrate Trump supporters, who you, incorrectly, believe are inordinately vaccine hesitant.”

                      Let’s not get off-topic. I believe my limited point is well-taken. Just like Trumpism inarguably believes in America First, this exceptionalism embodies a rugged individualism which views compromise and considerateness as weakness.

                      I don’t believe the government should be able to force people to take the vaccine. On the other hand, the government can restrict your participation in society unless you voluntarily take it, that is, cooperate. You can’t be forced to submit to a urine test, for instance, but you may not be able to work at a job absent one or get health insurance.

                      I disagree that Trumpism and vaccine resistance are not correlated. There are other reasons why non-Trumpists may be disinclined to take it, but the reason Trumpists don’t take it is manifest- they refuse to get the injection- what they childishly call “the jab”- just so they can “stick-it” to the Libs.

                    9. I am not against prohibiting it unless the birth threatens the life of the mother or other medical necessity.

                  2. Then why is aborting a viable fetus/ baby not murder also? The key word here being viable.

                    Good question. As we’ve seen, definitions have a tendency to change. Today, that keyword means to be capable of living outside the uterus. Kind of strange to consider a human life becomes worth allowing to live as technology advances.

                    Anyway, if non-viability means the human life will not survive without the mother, at what age is a human life viable outside (on its own) the uterus? Yes, sadly it’s a thing being argued.

                    1. 1st trimester 0 -12 weeks
                      2nd trimester 13-26 weeks
                      3rd trimeter 27-40 weeks

                      Accepted early viability 22-23 weeks
                      earliest born alive to survive I think was 21 weeks.

                      I am putting this down, so if the discussion continues, one can consider that what we are discussing in early viability is mid 2nd trimester.

                    2. Thanks SM. However my point regarding viability has now been extended into the area of post-birth abortions.

                      If criteria such as the costs (social, psychological, economic) for the potential parents are good enough reasons for having an abortion even when the fetus is healthy, if the moral status of the newborn is the same as that of the foetus and if neither has any moral value by virtue of being a potential person, then the same reasons which justify abortion should also justify the killing of the potential person when it is at the stage of a newborn.

                      Two considerations need to be added.

                      First, we do not put forward any claim about the moment at which after-birth abortion would no longer be permissible, and we do not think that in fact more than a few days would be necessary for doctors to detect any abnormality in the child. In cases where the after-birth abortion were requested for non-medical reasons, we do not suggest any threshold, as it depends on the neurological development of newborns, which is something neurologists and psychologists would be able to assess.

                      Second, we do not claim that after-birth abortions are good alternatives to abortion. Abortions at an early stage are the best option, for both psychological and physical reasons. However, if a disease has not been detected during the pregnancy, if something went wrong during the delivery, or if economical, social or psychological circumstances change such that taking care of the offspring becomes an unbearable burden on someone, then people should be given the chance of not being forced to do something they cannot afford.

                    3. “However my point regarding viability has now been extended into the area of post-birth abortions.”

                      Many years ago I remember reading about Peter Singer and those that surrounded him. They even discussed abortion postpartum up to the point the child could survive on his own.

    3. Of course many conservagtives fuel legal. political and constitutional rage.

      You seem top think that we are all supposed to be sheep lead quietly to the slaughter.

      It is not merely that Chemerinsky is fueling rage – it is that he is LYING to do so.

      If You can not tell the truth – you are not entitled to my respect, and you are deserving of my outrage.

      If you have actual examples of those you listed – or any other scholars or politicians right or left who are using demonstrable lies to fuel rage – please note them


      It is incredibly hard to respect YOU, to trust YOU, to take YOU seriously – YOU have spread so many FALSE claims.

      Why should YOU be trusted ?
      Why shouldn’t people be OUTRAGED at YOU ?

      Why should anyone beleive YOU about anything ?

      There are many issues where I do not know the truth.

      Why should one Trust you ? Democrats ? the Media ? even the Courts regarding the 2020 Election ?

      Have you gotten ANYTHING about Trump right ? Even close ?

      Have you not REPEATEDLY been caught in often egregious lies ?

      If course lots of people – left and right are full of OUTRAGE.

      Alot of which is JUSTIFIED.

      So what examples of JUSTIFIED outrage do you have from t he left ?
      Turley effectively demonstrates that Chemerinsky’s is NOT justified.

      And you rant about an assortment on the right – which of those are demonstrably LYING ?
      Not your opinion – that is worthless, but FACTS.

      If you want me to distrust Levin, or Hanity or … – not that I trust any of them as it is,
      Provide FACTS to demonstrate I should not trust them.

      YOU – personally – as well as democrats the media, the left all have a HUGE problem.

      That is that tin foil har nut job Alex Jones is more trustworthy than YOU are.

      That you can be compared not to Hanity of Levin – but to Jones and come up short should be unbeleivably embarrassing.

      And yet it is not.

      If I had been spewing as much nonsense as you for years – I would be ashamed to show my face in public.

      You have no shame.

      I do not trust you. Nor based on CLEAR evidence should anyone with an IQ over dirt.

      I do not trust you because you have bought into myriads of stupid conspiracy theories,
      Because you have spread them.
      Because you have accused myriads of others of moral failure and failed to even try to prove those claims.

      When you accuse others of moral failure – you are obligated to prove it, otherwise the moral failure is yours.

      I accuse you of moral failure – in making myriads of accusations of moral failure of others without proving them.
      Your own post proves that.

  6. We thought Trump’s departure would rid us of the plague of TDS, yet it has only exacerbated. Would that the FDA provide us with a vaccine against these virulent pathogens.

  7. Thomas Denies The Court Is Setting Policies

    Justice Clarence Thomas spoke last week at Notre Dame University. NPR covered the event:

    Taking questions after his speech, Thomas was asked what the biggest misperception of the court was.

    “They think that we make policy,” he replied. “I think the media makes it sound as though you are just always going right to your personal preference. So they think you’re anti-abortion or something personally, they think that’s the way you’ll always come out.”

    Thomas said people think “you become like a politician,” a problem, he said, that could jeopardize faith in the judiciary. “I think the media and the interest groups further that,” he said.

    Edited from:

    “Justice Clarence Thomas Says The Supreme Court Is Flawed But Still Works”

    NPR 9/17/21

    What Thomas isn’t saying here is that the court’s power to decide which cases to hear goes a long way in influencing national policy. For instance, the court’s decision to hear Mississippi’s draconian abortion law is most certainly a bad omen for supporters of women’s reproductive rights. The court could have declined to hear the case and allowed the Circuit Court ruling to stand.

    In other words, the court most certainly influences policy.

    1. Patience is not a Leftist virtue….perhaps you might wait till the Court actually rules on that Case before you get on your High Horse and start screeching the Sky is falling.

  8. Barrett, Kavanaugh and Gorsuch were selected by the Federalist Society, an extreme right-wing organization whose values and philosophies do not mesh with the values of most Americans. One major reason for their selection is their opposition to abortion, and Barrett even penned a piece explaining how they could overturn Roe v. Wade without actually overturning it. They do not represent the values of most Americans. They also have proven that they either lied or fudged in responding to questions during their confirmation hearings because they refused to enjoin the clearly unconstitutional Texas anti-abortion law, after telling Senators that Roe v. Wade was “settled law”.

    1. Natacha,
      “Federalist Society, an extreme right-wing organization whose values and philosophies do not mesh with the values of most Americans.”

      An organization that wants to limit federal power in favor of states rights does not mesh with the values of most Americans??? Don’t know where you get your polling data from, but I hope this isn’t true. This country was founded on the principle of limited government. It is what separates the USA from virtually all other countries. And in my view, it is the greatest contributing factor to our success, and is fundamentally the reason so many people want to come to this country.

      1. Carpslaw says:

        “And in my view, it is the greatest contributing factor to our success, and is fundamentally the reason so many people want to come to this country.”

        Are Western Europeans dying to come to this country? Have you’ve ever been to Switzerland? The people coming here are fleeing impoverishment, not because of limited government!

        1. Jeff, people who actually have been oppressed by a totalitarian government do actually come here for freedom. People get imprisoned, tortured, or killed for criticizing the government, or the Prophet. In some parts of Europe, you can be jailed for hate speech if you are an animal activist condemning the mass religious slaughter of animals. People have had their businesses and farms taken by socialist governments. For all of these people, personal liberty and limited government absolutely is a reason to come here. Yoeonmi Park, who escaped from North Korea, suffered years of sex slavery beginning at age 13, thought that the US would be the freest place for her to live. She was shocked to discover the constant bashing of America and capitalism at Columbia University. She was recently interviewed about how crazy people sound, trying to convince her, a North Korean refugee, that America oppresses her because of her gender, or that capitalism is bad. These people have no idea what oppression is.

          You are confusing your opinion with facts.

          1. Karen says:

            “In some parts of Europe, you can be jailed for hate speech if you are an animal activist condemning the mass religious slaughter of animals.”

            Link please.

            You say: “People have had their businesses and farms taken by socialist governments.”

            In Europe? Where?

            You say: “She was recently interviewed about how crazy people sound, trying to convince her, a North Korean refugee, that America oppresses her because of her gender, or that capitalism is bad.”

            One woman’s opinion; it makes it a fact?

            You say: “You are confusing your opinion with facts.”

            Ok, please back up *your* opinions with facts. I’ll sit tight.

  9. Erin Chemerinsky Nails Obvious Truth

    In his L A Times Op Ed, Professor Chemerinsky writes:

    Republican-appointed justices in the majority and the Democratic-appointed justices dissenting, the court has strongly tilted the scales in elections in favor of Republicans. In 2010, in Citizens United vs. Federal Election Commission, the court ruled 5 to 4 that corporations can spend unlimited amounts to get candidates elected or defeated.

    Business interests, which overwhelmingly favor Republican candidates in their campaign expenditures, outspend unions by more than 15 to 1. There is no plausible argument that the original meaning of the 1st Amendment included a right of corporations to spend unlimited amounts in election campaigns. Neither political expenditures nor corporations, as we know them today, even existed at the founding of this country.

    In decisions in 2013 and this year, the court’s conservative majority eviscerated the protections of the 1965 Voting Rights Act in a manner that helps Republicans and hurts voters of color and Democrats. In 2013, in Shelby County vs. Holder, the court, 5 to 4, nullified the law’s requirement that states with a history of race discrimination get preclearance before making a significant change in their election systems. Every one of these states where preclearance was required was controlled by Republicans

    Edited from:

    “Are SupremeCourtJustices ‘Partisan Hacks’? All The Evidence Says Yes”

    The Los Angeles Times 9/19/21

    These 3 paragraphs strongly suggests the conservative Justices have, indeed, a partisan agenda.

    The Citizens United decision opened the floodgates on corporate spending in political races. Billionaire donors are now all powerful lords, dictating policies from behind the scenes. Business interests out-spend labor unions by a margin of 15 – 1.

    In 2013, the court’s conservative majority stripped pre-clearance requirements from the Voting Rights Act. Since then, almost every Republican-run (southern) state has found excuses to impose voting restrictions with the sole intention of eroding voter turnout.

    One must note that all 6 of the Court’s conservative justices are members of The Federalist Society. What a coincidence! 6 of 9 justices were groomed by a finishing school founded for the purpose of issuing an ideological seal of approval. You see, Republican presidents need to know that their SCOTUS picks won’t turn out like David Souter.

    The fact that these Federalist appointees ruled in favor of corporations (Citizens United) and gutted the Voting Rights Act is no coincidence at all. They were deciding as only Federalists can.

    1. Dear Anonymous, Jeff Bezos gave half a million dollars to the Democratic Party. Both Parties receive millions of dollars from Corporate interests. You present it as if corporate dollars are only going to Republicans. If receiving contributions from business interests is so bad why don’t the Democrats stand on principle and refuse the corporate dollars. Very old an lame talking point Anonymous. I guess it’s been so thoroughly ingrained that you can’t help yourself.

    2. I am one Republican who has come around to agreeing with you that Citizens United was a bad decision. It dilutes the power of our individual votes by giving too too few people a much louder voice. The same is now true for big tech. However, in their case it is mostly liberal politicians and the government using them to obtain a voice much louder than any one else. Our goal should be laws and policies that get us closer to a one person one vote democracy. (This point is well made by Vivek Ramaswamy in his book Woke, Inc.)

  10. Anonymous says:

    “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.”

    Whether he intends it or not, Turley’s followers on his blog are nearly all Trumpists. As such, they exhibit the rage and lack of reason which Turley rightly condemns. If only someone could read the hate-filled comments to Turley to get his reaction! Maybe then he would address his followers directly to cut it out.

    The fact that he ignores the rage of his contributors makes his criticism of his academic colleagues ring hollow. Turley must clean his own house by speaking against the bad speech here with good speech. He should practice what he preaches.

    1. And the forum is such that you are able to address “the rage” and argue any “lack of reason” you see with your own reason. As far as I can tell, Turley never engages directly with this blogs participants. So we don’t really know how he feels about their comments. He sets the table with a topic, shares his views on that topic and allows free and open debate among those participating. He allows free speech! And today that feels quite refreshing!

      1. Carpslaw says preposterously:

        “So we don’t really know how he feels about their comments.”

        Turley has said time and again that he objects to bad speech, but he insists that the only remedy is good speech. Where is Turley’s good speech to address the bad speech prevalent on his blog commentary? Turley will not acknowledge nor criticize the bad speech hosted by his employer Fox or hosted on his own blog. Turley will not look himself in the mirror.

        1. Help me out here. Does Turley ever actually participate on the blog itself? If he has I haven’t seen it. Also, as you say “he objects to bad speech”, but I don’t believe he’s advocating suppressing speech. Lastly, it seems to me you consider any view that is different than yours “bad speech”. That has become one of the greatest differences today between Republicans and Democrats. Democrats seem to have less and less tolerance of different views and are less likely to be open-minded.

          1. Carpslaw,

            You really need to spend more time here. You don’t have a very good grasp of what Turley has been advocating.

        2. This guy is looking for handouts. Are you on welfare and demanding a free legal education? Maybe Young is right and instead of living the high-life, you live in a tent on a street in LA.

  11. The only partisan hacks I see on the Supreme Court are the leftist members who vote as a block all the time–never making up their own minds as individuals.

  12. Conservatives don’t want partisan hacks. We want people who will apply the law and the Constitution as it was written. Imagination knows no bounds. If you make the Constitution malleable to your political agenda, you can claim it means whatever you say it does. When the next party is in power, then they will be the new arbiter of Constitutional meaning.

    This is exactly why originalism is so popular among conservatives. If the law doesn’t say what you wish it did, then that’s a matter for the legislative branch. Reining in the idea that the Constitution is living document, and taking a more originalist approach is safer. It muffles the changes of different political parties.

    1. Do you believe that freedom of speech applies to what’s said on a phone, even though phones didn’t exist when the First Amendment was written?

      1. Hey Einstein…..You do know it takes a Court Authorization to intercept a telephone call don’t you?

        The Supreme Court has ruled on that in the past many times.

        In fact, if you do. your research you can find a conversation where Justice Thomas addresses the very issue you raise…..that being Constitutional Rights and Technology advances.

        Perhaps you might delve into actual facts about issues before you hold forth.

      2. Freedom of speech applies no matter what venue. It doesn’t matter where you’re standing, if you’re shouting or singing, speaking on the phone or telepathically. Freedom of speech protects you from government persecution based on speech. It’s one of the most basic human rights.

        Perhaps you could come up with a valid example.

    2. No, Karen, you are NOT a conservative. This error of yours has been corrected many times. True, respected conservatives want nothing to do with people like you who worship Trump. So, please quit trying to pretend that you speak for “conservatives”.

      1. George Will and Paul Ryan are the standard bearers of Conservatism AND Never Trumpers unlike Trumpists like Karen, sadly.

    3. Well said Karen S.
      I know the majority of people I know whom may be called conservative, want rule of law in regards to the Constitution.
      I even have a few liberal friends who have seen the need to keep to the rule of law and the Constitution.

  13. This fellow Chemerinsky is no lightweight. In 2017 he was named as the most influential person in legal education in the United States by National Jurist magazine. This guy is a well known promoter of the leftist philosophy. He’s cut from the same pattern as Lawrence Tribe and he is educating (brainwashing) our young people. “True revolutionaries do not flaunt their radicalism. They cut their hair, put on suites and infiltrate the system from within”- Saul Alinsky.

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