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.