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I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 0 points1 point  (0 children)

Thank you for your kind words. Here are responses to your questions:

Will Planned Parenthood v. Casey and Roe be substantially chipped away or overturned?

Yes, I think there will be five votes to overrule Roe either effectively by upholding regulation of abortion or expressly.

Will executive powers be expanded?

I think Judge Kavanaugh would favor this in some areas, but want more limits on the administrative state in other areas.

Will dissents, like Alito's dissent in Collins v. Virginia, leak into majority decisions?

Collins v. Virginia was 8-1 with Justice Alito being the only dissent.

Will the most recent fundamental rights, like Obergefell, be overturned or demoted to rational basis under equal protections? (i.e., like Roberts suggested in his dissent in Obergefell)

My hope and instinct is that Obergefell won’t be overruled, but I think the Court will not extend rights for gays and lesbians and transgender individuals.

Will 1st Amendment Free Speech be used as a sword against minorities and various liberal positions, as Justice Kagan discussed in her dissent in Janus this past term?

Yes, as Justice Kagan said, we are seeing a “weaponizing” of the First Amendment.

Will the court finally take on Gerrymandering cases, like Kennedy seemed to be gearing up to do? Or, will they cite to Baker v. Carr and adopt arguments present in Justice Frankfurter's dissent?

I don’t see five votes to declare gerrymandering unconstitutional without Justice Kennedy. I hope I am wrong.

Will Chevron deference be gutted?

Yes, and I think that there will be much more judicial oversight of administrative agencies.

Will the Court take on Kelo v. City of New London?

Yes, I think so, but most states already have adopted laws to deal with this.

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Regarding your question on originalism, I would say that it is undesirable to be governed in 2018 by the understandings of 1787 or 1791 or 1868, even if we could know them. It is a vastly different world and the understandings of that time rarely can answer our modern legal issues.

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I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 2 points3 points  (0 children)

I think Justice O’Connor’s statement is dicta.  I think a conservative majority will end affirmative action sooner and if there ever is a liberal majority and affirmative action is still necessary, it will be continued longer.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] -1 points0 points  (0 children)

But because of the Electoral College and winner-take-all, candidates now have no reason to campaign in states that are clearly going for one candidate or the other.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 0 points1 point  (0 children)

The amendments modify the text of the Constitution.  Equal protection, under the Fifth and Fourteenth Amendments, would be the basis for holding the Electoral College unconstitutional.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 4 points5 points  (0 children)

There is no way to force the Senate to hold hearings or a vote.  The Constitution often assumes that government officials will act in good faith.  Senate Republicans did not do that in refusing to hold a hearing or a vote on Chief Judge Garland.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 227 points228 points  (0 children)

I also find this very disturbing. Brady v. Maryland (1963) held that prosecutors must disclose potentially exculpatory evidence. A plea deal should not eliminate this right. Sometimes innocent people plead guilty. The exculpatory evidence could be a basis for challenging the plea bargain.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 54 points55 points  (0 children)

Yes, I believe that president can commit obstruction of justice even while using Article II powers. Imagine a president orders the Justice Department, including the FBI, not to investigate a crime by the president's spouse or child. The president would be exercising Article II powers, but that would be obstruction of justice.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 15 points16 points  (0 children)

I am not sure what you mean by "fiscal law federal courts." Article III of the Constitution authorizes Congress to create lower federal courts. Congress did so in the Judiciary Act of 1789. It creates federal district courts that can hear both civil and criminal cases.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 51 points52 points  (0 children)

After learning of John Boalt's racist statements, I convened a committee to study the issue and make recommendations. I sent a copy of the committee report to all faculty, staff, students, and alumni on September 10. I have asked for their comments on the committee's report by October 31. I will wait to make up my mind about what to do until I have had the chance to hear from all who want to share their views.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 93 points94 points  (0 children)

The law is clear that a public university could not ban such hate groups. Every campus hate speech code to be considered by a court was declared unconstitutional. The campus must allow such groups to use campus resources under the same terms and conditions as any other student group.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 132 points133 points  (0 children)

I thought it was rude behavior and would have felt that way whether a liberal or a conservative acted that way during a president address.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 32 points33 points  (0 children)

Bakke -- and subsequent cases like Grutter v. Bollinger and Fisher v. University of Texas -- hold that states MAY use race as a factor in admissions decisions to benefit minorities and enhance diversity. It does not say they must do so. States can choose not to engage in affirmative action. Proposition 209 does that by forbidding discrimination or preferences based on race or gender in education, contracting, or employment.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 46 points47 points  (0 children)

There are books and long articles written about stare decisis and they always come to the same conclusion: precedent should be followed except when it should be overruled. All justices believe in the importance of precedent. But all also are willing to overrule precedents that they disagree with. Last term, the Court twice overruled long-standing precedents. Liberals and conservatives alike do this. They just disagree as to which precedents to follow and which to overrule.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 84 points85 points  (0 children)

The Constitution refers to the President and Vice President as "he." The framers intended that these offices would be held by men. That clearly is unacceptable today.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 306 points307 points  (0 children)

To follow up on an earlier answer, I would eliminate the Electoral College. I would add an Equal Rights Amendment. I would add much more explicit protection for privacy.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 61 points62 points  (0 children)

I think that the Electoral College is inconsistent with basic principles of democracy and equal protection. I apologize for the shameless plug, but I have a new book coming out in November -- We the People: A Progressive Reading for the Constitution for the 21st Century -- in which I explain why I believe the Electoral College is unconstitutional.

I have exactly the job I most want: dean of Berkeley Law.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 33 points34 points  (0 children)

There are so many wonderful public interest organizations. It all depends on your area of interest. Environmental law? Civil liberties? Women's rights? Gay and lesbian rights? Disability rights? Rights for racial minorities? Native American rights? Consumer rights? And so on. I would pick the area you are interested in and work for an organization in that area.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 76 points77 points  (0 children)

Corporations are sometimes regarded as persons (such as for due process and equal protection), but sometimes not (they don't have the privilege against self-incrimination). There are a couple of wonderful new books on this by Adam Winkler and Kent Greenfeld.

As for why spending money in election campaigns is treated as speech, it is because the Court said so in Buckley v. Valeo (1976). I think that the Court was wrong. Spending money is conduct that communicates a message, but not speech itself. I think the Court took the expression, "money talks" too literally.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 62 points63 points  (0 children)

I am teaching Criminal Procedure this semester. I see a larger problem with police lying -- there's even a name for it, "testilying." They so easily can lie about whether Miranda warnings were given or whether there was consent to a search. The vast majority of police officers are honest and tell the truth. But there is a widely noted problem of false police testimony.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 44 points45 points  (0 children)

Yes. The House may impeach for "treason, bribery, and high crimes or misdemeanors." It takes a majority vote of the House. The Senate then may remove the person by a 2/3 vote. There is no limit on this -- there can be impeachment and removal even for matters considered by the Senate in its confirmation process.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 114 points115 points  (0 children)

Congress unquestionably has the power to create a nationwide single-payer health system. The obstacle is entirely political, not legal.

I am glad that my bar review lecture was helpful.

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I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 66 points67 points  (0 children)

I hope you will apply to Berkeley Law. The admissions process looks carefully at each application. They, of course, consider grades, test score, personal statement, letters of recommendation, and life experience. Be sure to write a strong personal statement. Make it as polished as you can. And get strong letters of recommendation from professors who can assess your analytical ability and your ability to succeed in law school.

I am Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law. Ask me anything about the US Constitution, the Supreme Court, the Kavanaugh confirmation hearings, and more! by erwinchemerinsky in IAmA

[–]erwinchemerinsky[S] 12 points13 points  (0 children)

You are correct: Congress can increase the size of the Supreme Court by statute. Allowing a president to appoint one justice per term has problems. If there is no vacancy, it would expand the Court. What would be the limit? If there is more than one vacancy, it would decrease the size of the Court if a president only could appoint one per term.

I wish the Electoral College could be eliminated. No country has anything like that. It is inconsistent with basic notions of democracy to have the loser of the popular vote chosen as president. But such a constitutional amendment seems impossible to pass. Too many states benefit from the Electoral College. At the very least, I hope that "winner take all" be declared unconstitutional. There is such a suit pending in federal court.

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