The shape of the Supreme Court

Erwin Chemerinsky Photo: Alex Maness

Erwin Chemerinsky, Alston & Bird Professor of law and professor of political science, joined the Duke faculty in July 2004 after twenty-one years at the University of Southern California. He has quickly become the Duke expert most often quoted in the media, speaking primarily on constitutional and U.S. Supreme Court issues. He has argued four cases before the Court, most recently Scheidler v. NOW, on November 30. In the midst of a flurry of activity around the pending Supreme Court nominations, he took some time to discuss the Court's changing composition and the significance of those changes.

Much of your law career has taken place during the William Rehnquist years. How would you describe the Rehnquist Court?

The popular wisdom was that the Rehnquist Court wasn't such a conservative court. After all, it didn't overrule Roe v. Wade or affirmative action; it didn't allow prayer in schools--in other words, it didn't go as far as some conservatives would have wanted. But the reality is, it did move the law significantly to the right. There is no doubt the Rehnquist Court was conservative and continued the trend of a conservative court.

I graduated from law school in 1978, and Rehnquist was appointed chief justice in 1986. All the time I've been litigating cases, I almost always lose.

How will John Roberts compare with Rehnquist?

I have read hundreds of memos and briefs. I've examined the rulings he made in his brief time on the [U.S.] Circuit Court. In every area, of all the justices, he seems closest to Rehnquist. His real significance is in the long term. If he stays on the [Supreme] Court until he is eighty-five, the current age of John Paul Stevens, he'll be there until 2040.

What about the Roberts Court in general? Can you talk about Sandra Day O'Connor's stepping down?

From August 3, 1994, when Stephen Breyer replaced Harry Blackmun, until July of 2005, no new justices were appointed to the Supreme Court. That is the second longest stretch in history with no new justice. It is a big change even to replace one justice. Now, we are seeing two replaced at virtually the same time. The composition of the Court will be vastly different.

The Rehnquist Court allowed limits on abortion rights. It restricted affirmative action. It allowed more funding for religious groups. In every one of those areas, O'Connor was the fifth vote that kept the court from moving even farther to the right.

Did O'Connor's status as the "median" justice give her decisions more weight? Is that an unusual phenomenon?

In any body with odd numbers, you're going to be able to identify someone who is the median vote. As a result, that person carries some weight. More often than not, in the Rehnquist Court, it was O'Connor. Before her, it was Lewis Powell. With the new justices, the middle moves to the right. Anthony Kennedy will be the new median justice, and Kennedy is significantly to the right of O'Connor on the issues of abortion, affirmative action, and the separation of church and state.

People often talk about strict construction versus loose construction. Can you explain that distinction?

I don't buy that distinction at all. The reality is that what separates the justices are the conservative, versus the moderate, versus the liberal values. There are plenty of people who are conservatives who want to overturn what government has done and want a loose interpretation of the Constitution. There are plenty of times when liberals want to defer to the government and have a narrow interpretation of the Constitution.

The Constitution is broadly written. It inherently requires [that] the justices make choices. There's no such thing as strict construction of what's cruel and unusual punishment. There's no such thing as strict construction of what's equal protection under the law. Strict construction is a phrase that Richard Nixon used when running for president in 1968.

How do you evaluate the justices, if you can't talk about strict and loose construction?

I think you can evaluate in terms of their judicial methodology more specifically. Do they believe that the meaning of the Constitution was fixed when it was adopted and is unchanged, except by amendment? Or do they believe that the Constitution evolves over time? Do they believe that there's a right to privacy protected in the Constitution or not? But then there's also their views. What do they think is the appropriate theory with regard to the separation of church and state? What are their views with regard to abortion, campaign finance, affirmative action?

In 1987, Robert Bork was rejected for the Supreme Court because he didn't believe that there was a right to privacy protected in the Constitution, he didn't believe that women were protected from discrimination by the Constitution, and those views were perceived as unacceptable.

Has partisanship always played a large role in who is nominated and confirmed?

Yes. It's been true ever since the presidency of George Washington. It was intended by the Constitution to be a partisan matter. We don't have a neutral commission to pick the most qualified people. There's the president, who's a partisan; we have the Senate, elected officials.

Will abortion rights be challenged under the new Court?

On November 30, the Court heard two cases that dealt with abortion rights [both of which will be decided over the next several months]. One involves a New Hampshire law that requires parental notification for abortion. The other involves a case concerning abortion protests, a lawsuit the National Organization for Women brought almost twenty years ago against Operation Rescue and its leaders for blockading abortion clinics and violating the rights of women. I argued the latter case.

Both of these cases will give an indication of where the new Court stands on the regulation of abortion. But neither will pose the ultimate question of whether Roe v. Wade should be overruled.

Will that question be posed any time soon?

Given the changing composition of the Court, especially if Justice Stevens were to be replaced by President Bush--he is eighty-five years old, how long is he going to stay on the Court?--I think there's a great likelihood that the Court will significantly cut back on, if not overrule, Roe v. Wade. If Roe v. Wade is overruled, in probably over half the states abortion will be illegal. In some states, like California, abortion won't be illegal.

Some people have argued that the Court's overturning Roe would actually help to galvanize the left. Do you see that happening?

I'm more skeptical. Sixty-eight percent of people say that Roe v. Wade shouldn't be overturned, but it's hard to know how things will play out politically.

Does it seem strange that abortion rights have been determined by a court case, rather than the legislative process?

My view is that the Supreme Court for almost a century has said that there is a right to privacy and autonomy. One fundamental aspect of a woman's right to privacy is the decision whether to continue or terminate her pregnancy.

The right to marry is drawn from this same right to privacy. The Supreme Court has said it's a fundamental right, even though it's not mentioned in the Constitution, no more than abortion. There are countless others: the right to procreate, the right to have custody over one's children, to keep a family together, to purchase and use contraception, to engage in private homosexual activity, the right to refuse medical care. The Court has protected all of these, even though they are not listed or even mentioned in the Constitution.

Can you give some examples of the Court protecting these "rights?"

Oklahoma had a law saying that anybody who was convicted of three felonies could be sterilized. But the Court declared this unconstitutional, saying that it violated privacy rights [because] the right to privacy includes the right to procreate.

Wisconsin made a law saying that if you had minor children that were not in your custody, you couldn't get a marriage license unless you could prove your support payments were up to date. The Court declared this unconstitutional as violating the right to marry. That, too, is an aspect of privacy.

What about cases challenging the separation of church and state?

There were two big ten-commandments cases decided [last] term, one of which I argued and lost in the Court. The Court was divided 5-4 in both of these cases, and so, again, I think that conservatives are going to look for other opportunities to get separation of church and state issues before the Court.

When will we start to see cases challenging those rights?

As soon as the Court signals that it is ready to change course, those cases will show up.

You mentioned that Stevens' longevity may play a role.

Stevens has been the leader of the more moderate, somewhat more progressive wing of the court. If Bush gets to replace him, then, instead of Kennedy being the median justice, [Antonin] Scalia becomes the median.

Harriet Miers' nomination was withdrawn due to a lack of support. The Alito nomination seems to be more effectively garnering the support of conservatives. Is he a sure thing?

It's not unheard of for a conservative nominee to be blocked and for the president to pick someone from the middle. Still a Republican, but not someone like Scalia or Thomas. For example, Nixon appointed [Clement] Haynsworth [Jr.], who was rejected. He then appointed [G. Harrold] Carswell, who was rejected. We got Blackmun. That's a huge difference.

In 1987, Bork was rejected for his conservative views, and Douglas Ginsburg withdrew, and we ended up with Kennedy. There is a big difference between Bork and Douglas Ginsburg and Anthony Kennedy.

It is not beyond Bush to appoint more moderate justices. He has appointed moderate Republicans like Sandra Day O'Connor to the Circuit Courts. For example, Judge Allyson Duncan [J.D. '75] on the Fourth Circuit.

--interviewed by Jacob Dagger