ABA Journal

Erwin Chemerinsky

31 ABA Journal Erwin Chemerinsky articles.

Chemerinsky: Originalism has taken over the Supreme Court

The U.S. Supreme Court term that ended on June 30 was the most originalist in American history. In case after case, the court professed that the meaning of a constitutional provision is to be determined by the original understanding at the time when it was adopted. Some of the justices—Clarence Thomas, Neil Gorsuch and Amy Coney Barrett—are self-avowed originalists. All of the conservatives often write their opinions in originalist language and sign on to expressly originalist decisions.

Chemerinsky: With Supreme Court shift on Indian law, will it reconsider a recent landmark ruling?

One of the most important themes of the recently completed Supreme Court term is the significance of Justice Ruth Bader Ginsburg being replaced by Justice Amy Coney Barrett. An important example of how this has affected court rulings came in a case in the area of Indian law that, by comparison, received little media attention.

Chemerinsky: This SCOTUS term moved the law ‘dramatically in a conservative direction’

The U.S. Supreme Court's October 2021 term was one of the momentous in history. The only analogy I can think of is 1937 for its dramatic changes in constitutional law. This is the first full term with Justice Amy Coney Barrett on the high court, and we saw the enormous effects of having a 6-3 conservative majority.

Chemerinsky: Supreme Court gun ruling puts countless firearms regulations in jeopardy

It was no surprise that the U.S. Supreme Court declared unconstitutional the New York law limiting concealed weapons in public. Given the ideological composition of the court and the tenor of the oral argument in the case, that result was expected. The surprise was how the court did this, providing greater protection for Second Amendment rights than virtually any other in the Constitution.

Chemerinsky: Supreme Court imposes further restrictions on habeas corpus

If Justice Neil Gorsuch’s reasoning in Brown v. Davenport is followed, it will almost eliminate the ability of those convicted to ever bring a habeas corpus petition.

Chemerinsky: SCOTUS clarifies First Amendment debate over content regulation of signs

For decades, a central inquiry in free speech analysis has been whether government regulation is content-based or content-neutral. Content-based government regulations of speech generally must meet strict scrutiny. To be constitutional, they must be narrowly tailored to achieve a compelling government purpose. By contract, content-neutral regulations have only to meet intermediate scrutiny, being substantially related to achieve an important government purpose.

Chemerinsky: Supreme Court reflects nation’s deep divide over Constitution and religion

The U.S. Supreme Court has four important cases about religion on its docket. Each of these cases, individually and especially together, could bring about major changes in the law concerning the Constitution and religion, writes law dean Erwin Chemerinsky.

Chemerinsky: SCOTUS could make significant ruling on EPA’s authority to fight climate change—or not

In a term likely filled with blockbuster cases, West Virginia v. Environmental Protection Agency is an enigma: It could turn out to be unimportant and dismissed without a decision; it may be a major ruling on the scope of the EPA’s power; or it could be a huge decision about judicial review of agency decisions. The case, which was argued on Feb. 28, arose in an unusual procedural posture that may cause the court to dismiss it. But if the justices reach the merits, it could be a decision of great significance about environmental and administrative law.

Chemerinsky: Justice Breyer is a model for all who sit on a judicial bench

In some of the most ideologically divided areas of law, Justice Stephen G. Breyer has been consistently and forcefully liberal. But in other areas, sometimes Breyer was with the conservatives, even as the decisive vote.

Chemerinsky: Expect a momentous year ahead for the Supreme Court

Conservatives look at 2022 in the U.S. Supreme Court with great anticipation, while liberals feel dread for what is likely to come. But all, on both sides of the political aisle, agree that 2022 is going to be a momentous year for the Supreme Court.

Chemerinsky: The most significant Supreme Court cases of 2021

Although 2021 certainly had important developments in the U.S. Supreme Court, there also was a sense of it being a year of waiting for the blockbuster cases to come in 2022 on abortion rights, the Second Amendment, and separation of church and state. As we look back at the court in 2021, what was most significant?

Chemerinsky: Ruling in abortion cases will greatly affect women’s lives but won’t end controversy

On Wednesday, the U.S. Supreme Court will hear oral arguments in Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law prohibiting abortions after the 15th week of pregnancy.

Chemerinsky: SCOTUS continues to hold the line on qualified immunity

Two unanimous U.S. Supreme Court decisions on Oct. 18 show the justices are continuing to broadly interpret qualified immunity to limit suits against government officials, especially police officers. Perhaps this will help fuel pressure on Congress to enact a law to revise qualified immunity, but so far such efforts have passed the House of Representatives and stalled in the Senate.

Chemerinsky: Expect a truly extraordinary year at the Supreme Court

Every Supreme Court term has important decisions that change the law and affect people’s lives, but some years are blockbusters in the number of high-profile, significant rulings. The October 2021 term, which begins on Monday, Oct. 4, promises to be such a year. It is the first full term with the court’s current composition.

Chemerinsky: The Supreme Court has done a poor job protecting against police abuse of power and racism

Following the death of George Floyd, the nation focused attention on the enormous problems of police violence and racism in law enforcement, but there is a failure to put blame where much belongs: on the United States Supreme Court.

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