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. How does Faigman come to the conclusion that “the composition of the Court itself, which is a product of political gerrymandering.” Certainly national election results have zero gerrymandering of districts like could be a valid argument if one was talking about a Congressional race. What about the fact that the States had 50 years to amend the Constitution and make new enumerated rights if they had wanted to, or Congress could have enacted laws to try to codify the Roe ruling especially since they had total control over all branches of government for the majority of the time. Once again we have liberal activists reacting emotionally and throwing a tantrum when they don’t get their way, and they seem intellectually vapid when it comes to rudimentary understanding of the Constitution, the roles of the 3 branches of government and the process in which to make laws.

  2. A troll is a monster that lives under a bridge that turns to stone if it is exposed to daylight.

    As best as I can tell a computer Troll is someone whose arguments you do not like.

    Whoever wishes to speek here may.

    This is not anyone’s domain. Only Turley gets to ban you.

    No one can else can “commandeer” the blog.

    Anyone is free to post as many or few remarks as they wish.

    It is incredibly “narcisistic” to diagnose others over the internet.

    Regardless, I do not care if you are a narcist – though I beleive it is Sociopaths that are characterized by a lack of empathy.

    I do not care if you drown in empathy or completely lack it.

    None of that is relevant to the validity of your arguments. What is relevant is that most discussion here involves. law – government and therefore the use of FORCE.

    To he extent empathy has any place in the law – it is at sentencing. A crime is a crime. Lack of empathy is not a crime.

    Further empathy has absolutely no place at all in government – government is FORCE. there is no such thing as the empathetic use of force.

    Nor is this about “point of view”. Do you honestly think there should be multiple points of view over the legitimacy of the use of FORCE ?

    One of the many reasons government must be limited is because we can only use FORCE when it is justified – and one element of justification is near universal support. Not multiple points of view.

    Points of view are for the enormous domain of life that is NOT Government. You have near infinite freedom in your own life – regardless of my acceptance of your point of view. Nor is your “point of view” relevant to how I live my life.

    Regardless, I am not interested in “Social Media Troll” debates – everyone is certain those that disagree with them are trolls.

    It is little different from claims of racism, or sexism or ranting that others are hateful, hating haters.

    If you want better communications – better posting, we need LESS, fixation on emotions, less fallacious ad hominem – including accusations of trolling. and more focus on valid arguments – facts, logic, reason.

    Atleast so long as we are discussing law and government.

  3. OT: Voicemail from Joe Biden to Hunter proves president DID speak about his Chinese business dealings
    Joe Biden called Hunter in December 2018 saying he wanted to talk to him after reading a New York Times story about Hunter’s dealings with the Chinese oil giant CEFC
    President Joe Biden spoke with Hunter about his business dealings with a Chinese criminal his son dubbed the ‘spy chief of China,’ a voicemail to his son reveals.

    https://www.dailymail.co.uk/news/article-10938637/Voicemail-Joe-Biden-Hunter-proves-president-DID-speak-Chinese-business-dealings.html

    1. Yes, Anon, I read it too. Or rather, I heard it, on Watters World. I’m in mid-argument at youtube, in the comments on the Fox News broadcast about it. Daily Mail UK is tacky and sometimes non-factual, but they are immune to suppression by the Powers That Be in America. The New York Post wasn’t so fortunate, back in October 2020.

      Will anything come of this? When? Hunter continues to do felonious Hunter things. He travelled widely to take huge bribes from exceptionally corrupt despots in China, Ukraine, Russia. It wasn’t a secret! Hunter’s dad said he didn’t know. Dad knew. Dad doesn’t know much of anything now, but that’s irrelevant, as he is President of the United States.

      If called upon to investigate Hunter, James Comey would probably decline to prosecute–despite a trove of evidence–for the same reason that he didn’t recommend DoJ charges against Hillary. He wouldn’t be able to get a conviction… because Joe Biden thinks the world of Hunter.

      Hunter, Hillary, and Mr. Nancy Pelosi act with impunity. If equal justice under the law is N/A for them, why shouldn’t it be for you, and me, and other “everyday Americans”? Those legal scholars at the pinnacle of academia that Turley mentions, Faigman and Chafetz and Chemerinsky, seem just fine with ignoring Rule of Law if the outcome is not to their liking. They haven’t uttered a word about Hunter, nor will they.

  4. They can’t throw me in a dungeon for writing a radical book. At least I have that going for me.

  5. Georgetown Law Professor Josh Chafetz is a an academic thug who would have fit in nicely as a commissar in the Soviet Union circa 1937; he also would likely become the recipient of a bullet from another Soviet thug.. It is really appalling that such an individual would hold a job teaching law students in the US in 2022

  6. “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.””

    The idea that Faigman is ignoring the thrust of the opinion is BS. He understands that it’s being left to state legislators, and also that many are guided by their religious beliefs in writing anti-abortion legislation.

    How does falsely claiming that he’s “ignor[ing] the entire thrust of the opinion” serve anyone?

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

    That’s your opinion.

    My opinion is that he’s right.

    “Gun rights are expressly protected in the Second Amendment and the Court has previously held that it is an individual right.”

    And in holding that it is an individual right, the Court refused to act as originalists, because the Founders absolutely did not hold that it was an individual right. The Founders purposefully chose to bind the right to the functioning of a well-regulated militia. These Justices are happy to ignore history when it serves their political goals.

    “My greatest objection is to a Dean telling law students that the legitimacy of the Court is in question.”

    The Court’s legitimacy was damaged by the politics of the Senate — Mitch McConnell in particular, as he unilaterally refused to hold hearings on Garland and then rushed ACB’s nomination through before the election when most Americans wanted the winner of the 2020 election to fill the vacancy.

    This decision — taking a right away from half the population — further damages the court’s legitimacy.

  7. The SCOTUS term served must be determine by term limits. Each Judge would be voted to serve for a number of years starting with 4 years, 5yrs, 6yrs, 7yrs, 8yrs 9yrs, 10yrs, 11 yrs. and 12yrs for each Judge. Their term served would be different from each Judge. I am sure there might be other ways of appointing these Judges but the bottom line, there must be Term Limits period, no exception. Just Do It.

    1. Before we worry about term limits for justices. Let’s start with Congress. The so called professional politicians from both sides is why nothing gets done legislatively. Imagine what Congress would be like if it had term limits and career politicians from both parties would be gone. Having new faces and thought every12 years. Instead of what we are dealing with now. No compromise and no solutions to real problems for the American people.

  8. Be more concerned about the ravings issuing forth from the legal establishment of this lot than any rulings handed down from SCOTUS. In the former lies the true threat to our Constitutional Republic.

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