Renowned scholar Dean Chemerinsky discusses pressing Supreme Court cases


Dean Erwin Chemerinsky, the second-most cited legal academic in the U.S., visited on Aug. 23. Photo by Hope Brusstar

On Thursday, Aug. 23, Dean of Berkeley School of Law Erwin Chemerinsky visited the Earl K. Long Library to give a talk entitled “A Pivotal Time in the Supreme Court.” Chemerinsky ranked in a scholarly impact study as the second-most cited U.S. legal scholar. He lectured about the most concerning recent events in the Supreme Court and what he expects to change if and when Brett Kavanaugh’s spot on the bench is confirmed.

“This is a pivotal time in the United States Supreme Court,” said Chemerinsky. “The conservative position prevailed in every case last year.”

He canvassed several recent court cases, including Trump v. Hawaii, where the state of Hawaii challenged Trump’s executive order known as the travel ban, which temporarily halted all incoming citizens of Venezuela, North Korea, Libya, Syria, Iran, Yemen and Somalia. But Chemerinsky said, “It wouldn’t apply to Christians in these overwhelmingly Muslim countries.” And further, “People who had green cards and visas … were being kept out.”

In response, “[Courts appealed that] the travel ban was motivated by hostility to religion,” according to Chemerinsky. But instead of forming a response to the public dissent, “the Trump Administration issued a second executive order banning travel from six countries.” And the third edition of the travel ban included North Korea and Chad.

“Do you have any idea how many people come from North Korea every year? 18. And I have no idea what Chad did to get on the list.”

After all, the Supreme Court upheld the travel ban with a 5-to-4 decision. Chemerinsky called them “deeply divided ideologically.” As for Trump, Chemerinsky said it seems that “Anything the president does in regard to immigration policy will be upheld.”

Chemerinsky brought up the arbitration clause which has been showing up in a wide variety of contracts, including cell phone plans and employment contracts. Upon agreeing to the arbitration clause, a person waives her right to settle a dispute in court, instead agreeing to do so in front of an arbitrator chosen by the company. The Supreme Court recently ruled that employees who had signed off on such a clause were not even able to file class-action suits against their employers, an issue which arose in Epic Systems v. Lewis, when workers who were being repeatedly underpaid joined together to sue their employer. This changes the way that the 1935 National Labor Relations Act is to be understood, as the Supreme Court stated that it did not apply since the employees in question were not part of a union.

Chemerinsky discussed some of the ways the arbitration clause comes up, including at his optometrist’s office, where he asked the receptionist if his doctor would still see him if he did not agree to the clause. “She said no one had asked that before,” he said.

“For the iPad, the terms are 47 single-spaced pages long. I usually just press ‘agree.’”

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the local government took issue when a homosexual couple was denied a wedding cake on religious grounds. But the Supreme Court ruled in favor of the cake shop. “The case was sent back to the Colorado court … it’s surely to get back to the Supreme Court,” said Chemerinsky.

“The Supreme Court left unresolved the [underlying] question,” he added. “Are bakers allowed to be choosers?”

In Gill v. Whitford, the Supreme Court has also recently considered the issue of gerrymandering, which happens regularly and can make a dramatic effect on election results. It occurs when a party redraws the borders of the voting districts so that a district’s majority vote favors their own party.

“What’s changed is that sophisticated computer programs allow [parties] to engage in gerrymandering with far more precision,” said Chemerinsky. It turns out that the Supreme Court ruled in favor of allowing the instance of gerrymandering that the plaintiff brought to court, on the grounds that the plaintiff was not in a district affected by gerrymandering.

“We all learned that voters choose their elected officials. Elected officials are choosing their voters,” said Chemerinsky.

Chemerinsky has also authored books about constitutional law and criminal procedure, as well as “Closing the Courthouse Door: How Your Constitutional Rights Became Unenforcable,” “Free Speech on Campus,” and “The Case Against the Supreme Court.”

The Honors Program, Student Government, and the Alexis de Tocqueville Project were all sponsors to this lecture.

“The SGA has been incredibly supportive of bringing speakers like Dean Chemerinsky to campus,” said Honors Program director and event host Professor Chris Surprenant.