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.