OAKLAND – In an August California Bar Journal article, Erwin
Chemerinsky, dean and distinguished professor at the University of California
Irvine School of Law, offered an overview of the U.S. Supreme Court and his
interpretation of its liberal leanings, especially after Justice Antonia Scalia’s
death earlier this year.
“The most important lesson from the just completed term of
the U.S. Supreme Court is that there are no longer five votes for a
conservative result,” Chemerinsky said. “From 1971, when President Richard M.
Nixon had his fourth nominee confirmed for the court, until Justice Antonin
Scalia died on Feb. 13, there were at least five justices appointed by a
Republican president and who were ideologically conservative. But no longer.”
Chemerinsky explained that when there is a 4-4 split in the
Supreme Court, the lower court ruling is affirmed. In some cases, there would
be no doubt that there would have been a conservative leaning if Scalia was
still on the bench.
He also argues that in many high-profile cases involving
issues like women’s rights to abortion or affirmative action in higher
education, Justice Anthony Kennedy leans toward the liberal side of court decisions.
“The only major decision where the conservatives prevailed
in an ideologically divided case was in Utah v. Streiff, which held that evidence gained after an illegal
police stop is admissible if the police learn of an outstanding warrant for the
person’s arrest,” he said. “Justice Breyer joined with Justices Thomas,
Roberts, Kennedy and Alito to create the majority.”
Chemerinsky explained that the Supreme Court, in a 5-3
decision, held that the evidence was admissible against Edward Strieff because the
officers searched after they found Strieff had an outstanding warrant.
Chemerinsky offered such an example to demonstrate how polarizing
some opinions can be, and there is a clear liberal or conservative slant to
For example, in the Utah
v. Strieff case, Chemerinsky cited Justice Sonia Sotomayor’s written dissent that stressed her
concerns with the Court’s decision.
“[T]his case tells everyone, white and black, guilty and
innocent, that an officer can verify your legal status at any time,” Justice Sotamayor
said. “It says that your body is subject to invasion while courts excuse the
violation of your rights. It implies that you are not a citizen of a democracy
but the subject of a carceral state, just waiting to be cataloged.”
Chemerinsky also offered many case examples that criminal
defendants were benefiting from many court rulings within the last year, and
in some cases by a large majority, regardless of liberal or conservative
As with regards to the future of the Supreme Court,
Chemerinsky explained that there will be several open seats that need to be
filled, and the next election will demonstrate which way the court will lean.
“Since 1960, 78 is the average age at which a Supreme Court
justice has left the bench. There will be three justices 78 or older when the
next president is inaugurated in 2017: Justices Ginsburg, Kennedy and Breyer,”
he said. “Especially if it is a two-term president, it seems likely that he or
she will have several picks for the high court.”
Chemerinsky does not offer predictions, but he does see a
trend, and it will depend on who is elected president.
“It is uncertain as to who will replace Justice Scalia,” he
said. “For liberals and conservatives, Democrats and Republicans, one of the
most important issues in the coming election is who will fill these vacancies
on the Supreme Court.”