Hastings Chancellor and Dean Questions the Legitimacy of the Supreme Court After Dobbs

We have been discussing political figures like Rep. Alexandria Ocasio-Cortez, D-N.Y. questioning the need for a Supreme Court or media figures calling for the Supreme Court to be abolished because it is not ruling the way that they demand. Such extremist views have always found a place in public discourse, but what is alarming is the degree to which legal academics have joined in this reckless rhetoric. Law professors like Berkeley Dean Erwin Chemerinksy have called the justices “partisan hacks” while others have supported targeting the individual justices at their home. Georgetown Law Professor Josh Chafetz declared that “when the mob is right, some (but not all!) more aggressive tactics are justified.” Now the dean and chancellor of University of California Hastings College of the Law David Faigman is questioning the legitimacy of the Court after the ruling in Dobbs v. Jackson Women’s Health Organization.  

Faigman, who teaches constitutional law, ignores the entire thrust of the opinion in returning this question to the states in declaring “those with religious objections to abortion do not have the right to impose them on others.”

While the decision does not make abortion illegal and most states are expected to protect it, Faigman states that “this decision turns back the clock not just to 1973, but to a century when women did not have the right to vote and were, largely, treated as property . .  . the world today is so much less generous and inclusive than it was just yesterday. I tremble for my granddaughters.”

The point is certainly valid that the decision returns women to the constitutional position of 1973 in the sense that this is now again a state, not a federal, issue. However, to suggest that the decision in any way harkens back to a time of treating women as chattel is baseless and inflammatory.

Dean Faigman also claims

“Just the obvious inconsistencies between the rationales of today’s decision in Dobbs and yesterday’s decision in Bruen striking down New York’s century-old restrictions on carrying concealed handguns outside the home raise serious questions of institutional legitimacy.”

That is an objection that is being made by many in the media despite being entirely divorced from any constitutional foundation. There is an obvious difference between the two cases. Gun rights are expressly protected in the Second Amendment and the Court has previously held that it is an individual right. One can disagree with that view but it is an express right. Even when Roe was handed down, many academics criticized its implied basis on privacy, including liberal academics like Laurence Tribe who called it “a smokescreen.”

Again, there is a good-faith claim that the right to an abortion is found in the Constitution. However, to ignore the obvious difference between the two cases is a disservice.

Faigman then adds “As a dean and professor of constitutional law, this opinion—and, indeed, the composition of the Court itself, which is a product of political gerrymandering—raises basic questions regarding the legitimacy of the Court itself.”

I understand Faigman’s deep-felt opposition to the opinion and his specific complaint against Justice Clarence Thomas’ broader questioning of the cases dealing with same-sex marriage, contraceptives, and other rights. However, he omits the countervailing points of the opinion.

The Court expressly and repeatedly stated that this decision could not be used to undermine those rights: “Abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’” The Court noted:

“Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.” The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance.”

Justice Thomas also emphasized this point:

“The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be under- stood to cast doubt on precedents that do not concern abortion.”

My greatest objection is to a Dean telling law students that the legitimacy of the Court is in question. I was one of those who objected to Merrick Garland not receiving a vote in the Senate. However, there was nothing unconstitutional in the composition of the Court. Nor is pursuing a conservative view of the constitutional interpretation an illegitimate act.

What is most striking about this statement is that it is being made in Faigman’s position as Chancellor and Dean. This is the type of position that would have been more appropriate from Faigman as an individual rather than as the representative of the school as a whole. While there are few conservatives or libertarians on law faculties today, there are likely some students at Hastings who agree with this decision. The Dean’s message only adds to the sense of liberal orthodoxy at such schools. It also reflects the sense of license today in deans using their positions to voice inflexible and one-sided views on the law.

The silence of the faculty in a dean making such controversial and contested claims in his official capacity only highlights the lack of diversity on faculties. David Faigman has every right to make these claims, but to do so as Chancellor and Dean creates a chilling effect on others who hold opposing views at Hastings.

142 thoughts on “Hastings Chancellor and Dean Questions the Legitimacy of the Supreme Court After Dobbs”

  1. Inciting the masses is never advisable. Its not like Biden’s FBI or DOJ will do anything.

    https://www.idahotribune.org/news/democrats-send-death-threats-towards-clarence-thomas-following-of-roe-v-wade-abortion-ruling-i-am-going-to-kill-clarence-thomas

    “Democrats Send Death Threats Towards Clarence Thomas Following Roe V. Wade Abortion Ruling — “I am going to Kill Clarence Thomas”

    Democrats have taken to social media calling for the death of Supreme Court Justice, Clerence Thomas, following the anticipated ruling which overturned Roe V. Wade, effectively giving the decision back to states regarding abortion access. Not one of these accounts have been banned.

  2. We have reached new depths of intellectual dishonesty. Just because you disagree with someone’s legal opinion doesn’t make them “illegitimate.”

    As a naive young lawyer 35 years ago I thought that law school deans were the height of jurisprudential scholarship and legal expertise. Now, today, it seems more clear that they too are just political hacks.

  3. The irrational reaction of leftists in government and even in law schools to the Supreme Court simply returning the abortion question to the states and recognizing the right to carry a firearm for protection shows again that it is time for a peaceful national divorce. I am quite serious. This is necessary before serious violence breaks out.

    If leftist mobs repeat the 2020 riots, but start trying to burn down businesses and homes at attack people in red state america they are going to be shot and killed. Once that happens things will get out of control. It is time for the Free States of America and the Socialist States of America. We can divide up the national debt by population. We get the nuclear weapons and they can keep the children’s drag queen story hours. Illinois will be split in half, and other geographic adjustments. Yes there will be a lot of migration. But that is already happening as free people flee the leftist states – which are turning into hellholes in the large cities. It is time.

  4. I agree that at least some of the justices are partisan hacks. Just that they happen to be in the minority, Breyer, Kagan and Sotomayer are the partisan hacks. Roberts just checks which direction the wind is blowing before rendering his decision.

  5. In 1991, Faigman wrote this:

    “Judicial review, as many commentators have observed, irreconcilably conflicts with political democracy. An unelected judiciary passing on the validity of laws promulgated by elected representatives is at variance with the basic principles of democracy. The primary quest of modern constitutional theory has been to identify principles to set limits on the judiciary”

    then cites Bork about why counter-majoritarian inclinations of SCOTUS are so bad…. see pp. 547-548 of Normative Constitutional Fact-finding”: Exploring the Empirical Component of Constitutional Interpretation (UPenn) Did Faigman always want to abolish the police uh SCOTUS?

    Also odd: Why does Chancellor and Dean Faigman Hastings ALSO a full Professor at UCSF med school, Dept of Psychiatry? He’s not an M.D.

    1. Argh sorry! U meant to say, Why is the chancellor and dean of Hastings law school also a professor psychiatry at the med school? I think I know why. There’s a health-law program. Includes abortion-related matters, among other things.

      BTW, in that 1991 UPenn Law Review article, Faigman spends four pages on Roe vs Wade. I couldn’t follow it, as I’m a constitutional law dilettante.

  6. Some posting on this blog are comparing not being able to get an abortion to slavery. The slaves did not put the shackles on themselves. They did not sail the ships that brought them to America. Imagine that they would have had a pill that would release them from the shackles but they wouldn’t take the pill. Imagine that they had a sharp file and almost four months to file through their shackles but they refused to use the file and then complained that they were still slaves. What if in some instances they had six months to use there file but they still clamored that they didn’t have enough time to saw through the soft metal? Would we then conclude that these slaves are responsible for their own dilemma? Would we not find their complaints without merit when we discovered that they first placed the shackles on themselves and when given ample opportunity to remove them they failed to take their self imposed slavery seriously? They call for the rest of us to save them when they could have easily saved themselves.

  7. So many on the Right are missing the point. The entire purpose of this hysterical rhetoric is to justify taking the liberty of right wingers, violating the rule of law, ‘packing the court’ etc. They want their street thugs to keep escalating until full revolution.

  8. Scotus went communist 7 to 2 in the 2020 election. The three from Trumo are PINO patriot in name on;y GHWB persons. Just like his AG.
    DJT is an oath breaker without honor unfit for a position of trust.
    The White Hats kill us for our own good. The Black Hats kill us for their best interests. http://www.orsja.org

  9. Liberals just love a victim. Treats women as chattel? Well, can “chattel” make decisions about sexual activity (knowing the consequences), or drive across a state boundary to get a legal abortion, or take an abortion pill in the privacy of one’s home? No? Then women are not being treated as chattel. Demagoguery and victimization are the keywords of the Democratic party. They’d “victimize” anyone to win a vote.

    1. “Treats women as chattel?”

      When government disposes with a woman’s property (her body) — that’s called “chattel.”

      1. This is no longer an issue of “women’s rights”. Unlike fifty years ago, today men can have babies. We know this is true because the Biden Administration and Democratic Party leaders use phrases like “birthing person” and “menstruating person” to describe those capable of giving birth. My local university confirms this by placing tampons in men’s rooms.

  10. So should Fagman resign, shut down all law schools and end the judicial process so Americans can just do as they please if laws are not decided according to Fagman?

  11. “T[]his decision could not be used to undermine those rights . . .”

    The hell it can’t.

    By the same baseless reasoning, since those rights are not listed in the Constitution, they do not exist.

    1. Sam, the Court’s decision didn’t end any rights. It reversed a decision that should never have been made, and placed the decision in the hands of the States where it belongs.

      1. If you applied the Glucksberg tests for finding unenumerated rights to be protected by substantive due process — grounding in historical tradition and required for “ordered liberty” (whatever that may mean) — neither Lawrence nor Obergerfel would come out the way they did. Griswold might, based on Harlan’s analysis. Each of them, however, would then have to be analysed under the stare decisis tests. There would also have to be four justices to grant cert in the first place. Given the many times Alito said that those precedents are not in play, it is unlikely they would be overturned.

  12. Professor Turley,

    I agree with your perspective on this subject. What he holds in opinion personally should be distinguished from his duties as an administrator. You stated, “The silence of the faculty in a dean making such controversial and contested claims in his official capacity only highlights the lack of diversity on faculties.”

    Though this may be true that there is a lack of diversity among faculty, I know firsthand that professors are afraid to voice concerns to their deans and college administrators for fear of imperiling their academic careers. I also know that prospective faculty are screened and discriminated against if they do not hold similar views of those on the committee who decide if they are hired or if they gain advancement. The results may be students who are not given the opportunity to fully understand and participate in vigorous and well given debate on controversial subjects and who can suspend their bias to step into the shoes of those they oppose, to seek an understanding of their point-of-view.

    One of the most amazing parts of the human body is the visual system. The right and the left eye sees the object of regard from a different perspective. The image is formed on the retina. Part of the optic nerves of the right travel to the left side of the brain. Part of the left travels to the right side of the brain. Some of the left and the right blend together and create what is known as stereoscopic vision. This is the 3-D effect. Though there are cues for depth perception with monocular vision, the ability to judge depth and enjoy the richness of vision only occurs when the right and the left are blended together. This is the genius of this nation. It is designed to blend the talents and abilities of all the citizens into a form of government that leverages the talents and creativity of the individual citizen, to give them an opportunity to reach their full potential.

    This is a case where the administration is cutting off its nose to spite its face. How very sad for these students to be subjected to a one-sided perspective without giving respect and full regard to all points of view. What is the point of a university education if the student does not learn how to think for themselves? It is the difference between an individual instrument or a symphony.

  13. Based on the shocking reaction of these deans and professors, it would make more sense to “question the legitimacy” of certain law schools, not the court!

    1. What a time in history we are living in today Cindy.

      *****

      Let us all Pray to Jesus:

      Prayer Search

      Serenity Prayer
      God grant me the serenity
      to accept the things I cannot change;
      courage to change the things I can;
      and wisdom to know the difference.

      Living one day at a time;
      enjoying one moment at a time;
      accepting hardships as the pathway to peace;
      taking, as He did, this sinful world
      as it is, not as I would have it;
      trusting that He will make all things right
      if I surrender to His Will;
      that I may be reasonably happy in this life
      and supremely happy with Him
      forever in the next.
      Amen.

      reinhold niebuhr (1892-1971)
      Niebuhr used various versions of the prayer widely in sermons as early as 1934. The prayer spread rapidly, often without attribution to Niebuhr, through church groups in the 1930s and 1940s and was adopted and popularized by Alcoholics Anonymous and other twelve-step programs. The Serenity Prayer appeared in a sermon of Niebuhr’s as part of the 1944 A Book of Prayers and Services for the Armed Forces, while Niebuhr himself first published it in 1951 in a magazine column.

      https://www.beliefnet.com/prayers/protestant/addiction/serenity-prayer.aspx

  14. “However, to suggest that the decision in any way harkens back to a time of treating women a chattel is baseless and inflammatory.”

    And, yet, that horrific decision does exactly that. It permits states that ban abortion to treat women as chattel. And the decision means that it is constitutional to do so.

    On this decision, whatever fidelity those justices have, it is not to the Constitution.

    1. Fascinating that liberals profess fealty to the constitution while denying and decrying enumerated rights in the 1st and 2nd Amendments.

      The leftist justifies hung a preconceived outcome — abortion on demand — on the contrivance of a right to privacy, which does not exist. Even Blackmun said so, more or less!

      I could have supported the right to an abortion had the left been serious about fleshing out and defending this so-called right to privacy. Perhaps ruling that citizens have a right to keep their income and expenses from they prying eyes of government revenue agents.

      Of course not!!

      When you make stuff up you should be surprised when your adversaries do the same.

      1. “Fascinating that liberals profess . . .”

        If that’s directed to me, then you are either new to this blog or blind.

    2. How EXACTLY does returning the decisions re. abortion “rights” back to the States, where it has always rightly belonged, “treat women as chattel”??? Do you even know what “chattel” means??? Do you even understand the Constitution – have you even READ it??? It very obviously doesn’t, you very obviously don’t, and you very obviously haven’t.
      If you want to protect women’s “right” to abort their unborn (or post-birth) children, then you need to get on your State legislators… so, get off YOUR duff. Oh, and you might want to read the Constitution – and Amendments – first. JA. BTW, not that it’s any of YOUR business, I’m a woman. And, I DO support women getting abortions.

    3. Wrong. It only determines that there is no “right” to abortion under the *federal* constitution. No more, no less. But don’t let me interfere with your pearl-clutching.

      1. “[T]here is no “right” to abortion under the *federal* constitution. No more, no less.”

        So if an action is not listed in the Constitution, then you do *not* have a right to take that action? (Or is it just on *this* particular issue that you invoke that view?)

        Be careful what you wish for.

    4. And the decision means that it is constitutional to do so.

      Federalism doesn’t mean that states have the right to pass any law they want. It means they have the right to try, if it was not a power provided to the federal government. Any law or regulation that infringes the rights of the people is unconstitutional.

        1. For starters, the purpose for government: That to secure these rights governments are instituted…

          “A Law repugnant to the Constitution is void.” Chief Justice Marshall

          But hey, I’m willing to learn. What laws or regulations “justly” and constitutionally infringe the rights of our citizens?

          1. Olly says:

            “A Law repugnant to the Constitution is void.” Chief Justice Marshall”

            REALLY?

            “It’s Debatable: Marbury v. Madison a mistake?”

            https://www.lubbockonline.com/story/opinion/2016/10/16/its-debatable-marbury-v-madison-mistake/14890272007/

            “Let me first anticipate the collective groan of our readers as to why a decision handed down by the Supreme Court in 1803 is relevant in 2016 and even worthy of an “It’s Debatable” topic. I have a compelling answer: The Supreme Court in Marbury v. Madison committed an illegal takeover of the government and Constitution by granting itself the unilateral and unchecked power to declare the acts of Congress or President illegal and unenforceable. This may sound like an arcane point, but it is not. Marbury v. Madison has granted the Courts virtually dictatorial powers to controvert the will of the People and to act in the manner of a despot.”

            1. What is your argument ?

              I can not tell from your post what you are arguing.

              You quote various sources that disagree but do not make your own position clear

            2. The Supreme Court in Marbury v. Madison committed an illegal takeover of the government and Constitution by granting itself the unilateral and unchecked power to declare the acts of Congress or President illegal and unenforceable.

              That’s their job.

              [W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. Federalist 78

                1. Really? So what is the role of the Supreme Court in our particular system of government? Since you apparently believe it is unrelated to imposing a constitutional check on the other two branches.

                  1. Not my idea, Jack. Just staying that there are those who believe that Judicial Review was the original sin. That the SC cannot command the Executive branch- separation of powers as outlined in the Constitution. Judicial Review was a usurpation of power some say.

                    1. Option A: Agree with the original sin argument and cement your useful idiot legacy.
                      Option B: Agree with the separate of powers and judicial review theory and go into witness protection.
                      Option C: Play the blog gadfly. The alter-ego of Jonathan Turley.

                      You wear A and C equally well. Turley wears B. You’ll never be Turley.

                    2. Olly,

                      Despite my sharing his Liberal values and agreeing, by and large, with his opinions, I would hope not to be a shameless sell-out by joining a news outfit currently being sued for defamation for spreading patently false election conspiracy theories by hosting Trumpist liars in service of the Big Lie.

              1. Supreme Court Justice Antonin Scalia, in his dissent to the case United States v. Windsor (2013), argued that judicial review should only be a limited and incidental power of the Supreme Court:

                “[D]eclaring the compatibility of state or federal laws with the Constitution is not only not the ‘primary role’ of this Court, but it is also not a separate, free-standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become ‘the province and duty of the judicial department to say what the law is.”

    5. Corrections: Its permits the CITIZENS of the states to decide in a democratic manner what limits to place on abortion, through their elected representatives. That has always how abortions issue were decided rom the inception of the Constitution’s adoption and ratification in the 1700’s to 1973. That is how democracy works. The SCOTUS is not a legislative body and had no business making policy decisions about abortion for the electorate. If you cannot get an abortion today you are not chattel you are just totally ignorant.

  15. Interestingly, the principal view of Canada’s Supreme Court advances the Right to Privacy as the only dimension to be considered as it is directly explicitely stated in the Canadian Charter. Yet, this right of abortion has to effectively denigrate any Rights a foetus could portend to have. For this Court, nothing can be read into a foetus which could interpret it as a life or a potential of (what a refer to the Candian Clump of Cell Theory)…But obviously, I guess this consideration is only valid in the case of abortion, since murdering a pregnant women can be considered a double homicide… It’s Canada after all… (PS, I’m a dual citizen, for those who question my interest)

  16. I have recently come to the conclusion that Hillary Clinton was right one time in her life. She claimed some people are irredeemable. I submit that nearly all of those in academia from K-12 and beyond fall into that category. Those who wish for conservative, and perhaps Christain schooling better start their own institutions. Like Hillsdale College for example. There is no hope for this gang.

  17. This is the problem with academia – it is the sanctuary of left-wingers, most of whom couldn’t find a legitimate job but who remained in academia as an extension of their own experience as students. They have been taught since elementary school that the Constitution is to be interpreted in whatever manner the interpreter seeks to support their own opinion. Now they see the Supreme Court as political because an opinion is contrary to their own political viewpoint.

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