ABA Journal

Erwin Chemerinsky

35 ABA Journal Erwin Chemerinsky articles.

Chemerinsky: Expect another wave of significant rulings as the Supreme Court returns

Sometimes an especially momentous U.S. Supreme Court term is followed by a quieter year with fewer blockbuster decisions. But that is not what we should expect when the court hands down its rulings for this term in spring 2023. Once more, the court’s docket is filled with cases of great legal and social importance that will profoundly affect the lives of many people.

Chemerinsky: 2022 contained a week that dramatically changed constitutional law

There are pivotal years in constitutional law: 1787, when the Constitution was ratified; 1791, when the Bill of Rights was adopted; 1868, when the Fourteenth Amendment was enacted; 1937, when the Supreme Court overturned 40 years of precedents that had limited the power of Congress and state legislatures to protect workers and consumers; 1969, when the liberal Warren Court ended, and the more conservative Burger Court began. And 2022 was such a decisive turning-point year.

Chemerinsky: An important week of arguments in the Supreme Court

Next Monday and Wednesday, the Supreme Court will hear oral arguments in two of the most important cases of the term. Each could have enormous implications for future litigation and for constitutional law.

Chemerinsky: Stakes are high as Supreme Court considers affirmative action cases

The future of affirmative action in the United States rests on two cases heard by the U.S Supreme Court Monday: Students for Fair Admissions v. University of North Carolina and Students for Fair Admission v. Harvard College. Both liberals and conservatives expect the court to overrule precedent and end affirmative action by colleges and universities. This will have a dramatic effect on both public and private schools, and how the court does this could have enormous implications for many areas of law.

Chemerinsky: Supreme Court poised to sharply advance the law to the right

Last year’s term was momentous: The court overruled Roe v. Wade, greatly expanded gun rights and aggressively protected free exercise of religion. There is no doubt that the coming term, too, will be filled with blockbuster decisions.

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.

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