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.