Erwin Chemerinsky Supreme Court book coverBefore November runs its course, I wanted to point out one item in this month’s Arizona Attorney you may have missed—a book review.

My fondness for book reviews—when well done—is unabashed. And this month, attorney Roxie Bacon examines a new book by Erwin Chemerinsky that dissects the U.S. Supreme Court.

Chemerinsky is Dean of the UC-Irvine law school, as well as an accomplished scholar and SCOTUS litigant. And his assessment of the Court’s standing is damning. He argues that the Court has fallen down on the job in regard to its most important missions.

You can read Roxie’s excellent review here.

Meantime, for those who think Chemerinsky and Bacon are being too hard on the High Court, consider the current thinking of someone who knows that tribunal well. Linda Greenhouse covered the Supreme Court for years for the New York Times (and I spoke with her once myself, here). Now, she merely shakes her head in dismay at the tortuous legal paths the Court’s majority have taken in significant cases.

Linda Greenhouse

Linda Greenhouse

You should read Greenhouse’s op-ed, and feel free to let me know if the assembled thinkers have overstated their case, or if you agree.

A grateful hat-tip to Kristen Senz of the New Hampshire Bar Association for mentioning Greenhouse’s essay.

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

At noon today, the annual Willard Pedrick Lecture will be delivered at the ASU Sandra Day O’Connor College of Law.

The speaker will be Erwin Chemerinsky, Dean of the UC–Irvine School of Law. His topic will be “Rethinking Privacy and the Fourth Amendment.” It’s likely too late for you to reserve one of the free seats, but it may be worth a shot to drop by anyway (many of the seats reserved for students are still not taken).

I had the chance to interview Dean Chemerinsky early in 2012 for a Q&A in Arizona Attorney. I’m confident his lecture will be worth hearing.

That’s why I’m disappointed to note that I’ll be unable to attend today’s lecture. But I’d love to hear from someone who was there. If you do attend and are interested in guest-writing a blog post about his remarks, please write to me at

Here is some background about the dean, as provided by ASU Law School:

“Chemerinsky is one of the nation’s top experts in constitutional law, federal practice, civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution. Chemerinsky’s casebook, Constitutional Law, is one of the most widely read law textbooks in the country. He has also written nearly 200 law review articles in journals, such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal.”

“Chemerinsky frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeals, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.”

Dean Erwin Chemerinsky

In major Supreme Court cases, it’s useful to have a scorecard. And that’s just what Erwin Chemerinsky provides in regard to SB1070.

Arizona’s own criminal–immigration law hybrid is examined by the UC-Irvine law dean in the ABA Journal. And his insights get right to the heart of the case being watched carefully by legal scholars, lawyers, politicians and even police departments. What do you think SCOTUS will do with the case? Let me know your thoughts at

You may recall that we published a Q&A with Dean Chemerinsky in our February Arizona Attorney Magazine. As he told us then, “So often discussions of federalism have focused on the scope of Congress’s power. But federalism also is about the extent to which federal law preempts state law. Arizona’s immigration laws, include SB 1070, focus attention on this.” (Our Q&A preceded his delivery of the annual ASU John Frank Lecture.)

In the ABA Journal, Chemerinsky examines some of the disagreements between the parties, which includes the State of Arizona:

“It is striking that the briefs of Arizona and the United States disagree about everything that is before the court. First, the two sides disagree as to the context in which the court should approach the case. Arizona begins its brief with a long section on “illegal immigration’s disproportionate impact on Arizona.” It spends the first seven pages of its brief describing the effect of illegal immigration on Arizona in terms of crime, government benefits and employment.

“By contrast, the brief for the United States begins with a long section describing “the comprehensive federal immigration framework.” The United States brief begins with almost eight pages describing the detailed system of federal immigration regulation.

“This difference is not coincidental. Arizona wants the justices to see this case from the perspective of a state dealing with a serious problem and acting to protect itself and its citizens. The United States wants the justices to view this matter as involving an area which is traditionally and inherently under the control of the federal government.

“Second—and surprisingly—the two sides disagree about the standard the court should use when deciding whether federal law pre-empts state law. Arizona repeatedly states that in the absence of an express preemption provision in a federal law, a state law is preempted only if there is a conflict between federal and state law. Its brief states: “The bottom line is that there is no preemption unless state law conflicts with some identifiable federal statute.” Arizona argues that there is no conflict between SB 1070 and federal law; its primary argument is that SB 1070 is using the resources of state and local law police to supplement and enhance federal efforts.

“The United States, though, says that a conflict between federal law and state law is not required for preemption; there is preemption if a state or local government interferes with achieving a federal objective. It sees Arizona’s law as doing this. The United States contends that inevitably decisions about immigration enforcement implicate issues of foreign policy and that is in the sole domain of the national government. The United States relies heavily on the Supreme Court’s 1942 decision, Hines v. Davidowitz, which said that immigration enforcement necessarily implicates “important and delicate” considerations of foreign policy and that therefore states cannot “contradict” or “complement” federal immigration efforts.”

Keep reading here.

Introduction to our Q&A, Arizona Attorney Magazine, February 2012

In late February, UC-Irvine Law School Dean Erwin Chemerinsky came to Tempe to deliver the annual John Frank Lecture at Arizona State University. In that evening, he sought to give us some insight into our nation’s highest Court.

In advance of his Lecture, I published an interview I did with the Dean; it appeared in the February Arizona Attorney Magazine.

Erwin Chemerinsky apeaks at ASU, Feb. 20, 2012

His presentation was masterful—well written, well delivered, zero notes—and the questions that followed were well put.

However, as I sat in ASU’s Neeb Hall, I thought that some of the questions were pretty lawyerly. They involved intricate details of specific cases, and his prognosis of whether the Court might take up this or that historical remnant in order to decide a case.

Our Q&A opening, February 2012 Arizona Attorney

All of those things are fascinating, and Chemerinsky was able to speak amiably about each of them.

But I wondered—and then asked—about something different. He had spoken that evening about the Court’s likely approach in regard to the Affordable Care Act, a hot-button topic on both sides of the political aisle. However, Americans wondered whether all of the legal details would matter to the Court. It seemed to me that many people have come to see the Supreme Court as a largely partisan battleground. Therefore, even though most commentators, including Chemerinsky, believe the Court will ultimately uphold the law, many lay people—and even lawyers—don’t expect it will get a fair shake at SCOTUS.

As I recall, Dean Chemerinsky answered that it’s unfortunate that many people, especially since Bush v. Gore, hold the view that the Court is overly political. And then he took another question.


Well, in today’s Wall Street Journal Law Blog, the question is addressed head-on. In it, writer Sam Favate examines a recent poll that shows—yep—that most Americans believe that politics will influence the Court’s health care insurance ruling.

Although an ABA poll showed that 85 percent of lawyers, judges and legal journalists believe the law will be upheld, “Three-quarters of Americans say the Supreme Court will be influenced by politics when it rules on the constitutionality of the 2010 Affordable Care Act, according to a Bloomberg National Poll.”

That’s a huge number of people.

In a related matter, I came across this opinion piece in Politico last week titled “Scuttle SCOTUS’s Life Tenure.” The writer opens:

“Life tenure for Supreme Court justices does not belong in a democracy. It gives an unelected public official immense power for decades over the lives of hundreds of millions of people without any accountability. It should be abolished and replaced with a single, nonrenewable term of approximately 15 years.”

Such a thing may be unlikely. But given the discontent with a perceived political bent on the Supreme Court—more than a decade after Bush v. Gore—such positions may be stated more and more.

What do you think about the Court’s current approach, and about life tenure?

And I must give a hat tip to The Ohio State University’s Douglas Berman, who alerted me to the Politico story here.