Judicial Activism: Playing with the Constitution. An Interview with Constitutional Law Scholar Erwin Chemerinsky on Abortion, the 2nd Amendment, the War on Terror and Guantanamo Bay

By WAJAHAT ALI
Thursday, Sept. 18, 2008

In a landmark election season hailed as historic for the inclusion of an African American and a woman as official party candidates, scarce discussion has arisen over the future of the Supreme Court. Undoubtedly, a crucial consequence of this election is a potentially radical alteration of the ideological identity of a Court that will possess the power to change the legal framework of this nation in regards to contentious legal issues, such as abortion, the 2nd Amendment, and the limits of Executive Authority in waging "The War on Terror." As recently witnessed by the controversial and divisive rulings on the 2nd Amendment and the rights of Guantanamo prisoners, an uncomfortable battle has been brewing for the "judicial soul" of the nation.

In this exclusive interview, Professor Erwin Chemerinsky, one of the country's most renowned, respected and opinionated constitutional law scholars and Dean of the newly established Donald Bren School of Law at the University of California, Irvine, tackles a gamut of questions on the critical legal maelstroms of today.

ALI: Abortion - many say - is arguably the most contentious, hot, and divisive topic that exits today. What should we see regarding the future of Roe v. Wade? Why is this subject, more so than any other, so vital to American society?

CHEMERINSKY: People care deeply whether women have the right to choose. For those who favor abortion rights, the central aspect is of a woman's reproductive freedom, and therefore her liberty. For those who oppose abortion, abortion is murder. And there's no middle ground between these two positions. The result of that is emotions are very deep. Right now, the Supreme Court has 4 justices who would like to overrule Roe: Scalia, Roberts, Thomas and Alito. And 5 who will vote to restrict abortion: Breyers, Stevens, Ginsburg, Souter and Kennedy. Justice Kennedy I think will vote to overrule Roe vs. Wade.

If McCain replaces Justice Souter or Justice Stevens or Justice Ginsberg with an anti- abortion Justice, then there will be 5 votes to overturn Roe. If Obama replaces them with a Pro-Choice Justice, the Court will stand about where it is right now.

ALI: What's your opinion on the "constitutionally correct" take on Roe v. Wade?

CHEMERINSKY: I believe the Supreme Court got it right in Roe v. Wade. I agree that a fundamental right for a woman's right to privacy is the ability to decide whether to have a child.

ALI: The California Supreme Court has allowed gay marriages in that state. What's your opinion on the constitutionality of gay marriage, and should it be left to the States, instead of the Federal government, to define what marriage is?

CHEMERINSKY: Marriage has always been a matter of state regulation, and I think the California Supreme Court was correct in finding a right to marriage equality under the California Constitution. Gays and Lesbians should have all the benefits of marriage as available to others in society. I think the United States Supreme Court has long recognized there is a fundamental right to marry and that discrimination against Gays and Lesbians is suspect, and I think it naturally follows from that that there should be a right to same sex marriage. I very much agree with the decision.

ALI: Some fundamentalist Mormons, for example, and some others say that their religion allows bigamy or polygamy. Should that be allowed? Or, should it be a state-by-state basis? Does it not hold muster under the U.S. Constitution?

CHEMERINSKY: Well, I would need to know a lot more about how bigamy and polygamy is actually practiced and whether or not it is an insubordination of women as it traditionally has been. I would want to know more and have that discussion. But to me that question is irrelevant to question should Gays and Lesbians have the same ability to express love and commitment, same ability to be disappointed or elated by marriage like the rest of us. And I see that as a basic aspect of human rights.

ALI: Recently, the Supreme Court made a controversial ruling - what many call "The 2nd Amendment ruling" - allowing individuals to keep handguns for self defense. The NRA cited it as a great victory, but others sense this is the Court, yet again, catering to certain interest groups and not necessarily helping the gun violence problem in America. From a constitutional perspective, are handguns encompassed within the scope of the 2nd Amendment?

CHEMERINSKY: There's long been dispute over the meaning of the 2nd Amendment. One side says that the 2nd Amendment is about the right of individuals to have guns. The other side says that it is for the right to have guns for the purpose of militia service. Each side supports the text of the 2nd Amendment, the amendment says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

"Gun control" advocates say the amendment is clear. "It's all about the right to having guns for the purpose of military service." "Guns rights" advocates say, "…but it proclaims the right of people to keep and bear arms shall not be infringed."

Now, the issue before the Supreme Court, not surprisingly, is divided 5 Justices to 4 Justices in the Conservative direction because 5 of the Justices are more Conservative; they ruled in favor of the "gun rights" position.

ALI: Regarding Conservative versus Liberal arguments: what's your position on the Republican Party's claim that liberals dominate the Court and there is judicial activism - legislation through the bench? How realistic is that in your opinion?

CHEMERINSKY: It's nonsense. Judicial activism is the label for the decision that people don't like. As far as liberal domination of the Supreme Court, 7 of the 9 Justices on the current Supreme Court - all but Justices Breyer and Ginsberg - were appointed by Republican Presidents.

Republican Presidents have appointed a majority of all of the lower federal court justices- it's a substantial majority. Right now, President Bush has appointed over a third of all the lower federal court judges just himself. So, there's no liberal domination of the bench.

In terms of judicial activism, I think by any measure the Supreme Court's decision with regards to the 2nd Amendment was judicial activism. The Courts for the first time in American history struck down a law on the basis of the 2nd Amendment. The Supreme Court here for the first time in American history found that the 2nd Amendment preserves an individual's right to have guns. It's this conservative judicial activism. So, I go back to what I said earlier, I just think judicial activism is used by people to attack the decisions they don't like.

ALI: We have Justices Roberts, Alito, Scalia and Thomas, who lean more heavily "Right" than the other Justices lean "Left." If we are to see a McCain presidency - and right now the polls are tied - will we see a domination of a "right wing" majority? And, will this be beneficial or detrimental for America if any ideological majority takes control of the bench?

CHEMERINSKY: The reality is the 2008 Presidential elections will determine whether the Supreme Court will be more conservative or will it stay ideologically where it is now. It's very unlikely the 2008 election will cause the Court to be more liberal. The reason is all of these vacancies come more from the "Left."

Who are going to be the vacancies during the next administration January 2009 to January 2013? Well, John Paul Stevens is 88, he's not likely to stay with the Court when he's 93 in 2013. People always talk about Justices Souter and Ginsberg also retiring.

On the other [conservative] side, John Roberts is 54. Neither Samuel Alito nor Clarence Thomas had a 60th birthday. Antonio Scalia and Anthony Kennedy are 72, so they'll be there at least another decade. So, if McCain replaces Stevens, Souter or Ginsberg, then the Court will be Conservative. If Obama replaces these Justices, he'll be replacing people with the same ideology and the Court will stay the same.

ALI: Is it always better to have a majority leaning one way or another? What's the best political ideological makeup of the bench that is healthy for the country?

CHEMERINSKY: I don't think there is such a thing. I think if you're liberal you want a Court that advances your views, if you are a conservative you want a court that advances your views. Ronald Regan set out, like Richard Nixon before him, of having a Conservative court. Franklin Roosevelt wanted a Liberal court. And, there's not any perfect mix, it always is a function of what are your views and what do you want the Constitution to mean?

ALI: The U.S. government and supporters of "The War on Terror" say the prisoners of Guantanamo should not be afforded habeas corpus and the rights afforded to U.S. citizens. Due to this stance, others have said this has been an egregious human rights violation. From a constitutional perspective, how accurate is this statement that the enemy combatants are not afforded any rights?

CHEMERINSKY: They're not. The administration's position from the beginning is that the non-citizens held as enemy combatants are not entitled to any protections whatsoever and the United States Supreme Court held on June 12th of this year that non-citizens held do have a right to come to federal court with a right of habeas corpus.

ALI: What will we see in regards to change as a result of this ruling? What's the next step?

CHEMERINSKY: Now what we're seeing is that the federal courts are hearing the habeas petitions of those in Guantanamo. I've been representing a Guantanamo detainee for 6 years now. I think we're going to see - hopefully - that these individuals will finally get some Due Process. My client has been held for 6 years and has not gotten even a semblance of Due Process.

ALI: Since you've been following this for 6 years, what are the conditions like for these detainees? What have you personally witnessed?

CHEMERINSKY: My client is held essentially in solitary confinement for almost the entire week. He has limited amount of time out of his cell for exercise. He's a man who has never been convicted of any crimes. Never even been accused for any crimes. Never even been tried for any crimes.

ALI: John Yoo, UC Berkeley law professor and legal advisor to President Bush, has given legal ammunition specifically for the Executive Authority to have "broad" wartime powers especially in the post 9-11 climate. From a constitutional law perspective, has the Executive Authority to wage the "War on Terror" curtailed our privacy rights -

CHEMERINSKY: (Quickly) Absolutely. There's no doubt that things the government has done has greatly compromised our privacy without making us any safer. The government has engaged in massive warrant-less wiretapping and exceptional electronic communications - email communications - without following the law. The government is gathering information about individuals through so-called national security letters, where an FBI agent sends a letter to somebody's bank or school just to get information. There's no doubt that privacy has been compromised. What's troubling is it is done without any reason to believe it has made us safer.

ALI: Many say that efficiency and justice and today's environment warrant certain security measures such as these, so they question why people like you and other "liberals" wish to make America less secure? Why can't the President and others of authority bypass some of these restrictive rules for the sake of overall security?

CHEMERINSKY: I agree the President should be able to make us safer. I do not want to make us unsafe in the slightest. But I want to make sure that before people lose their freedom there's a basis for it: that we [as a country] really are made safer as a result. The President proclaims the authority to hold anybody anytime by saying it will make the country safe by just detaining people. But how do we know the President is right? Who is to say the President is making a mistake?

The framers of the Constitution were very distrustful of Executive Power. They wanted to make sure that before any person could be held by the government there was minimal due process, there was review by an independent judge, and that the President's claim of authority to hold an enemy combatant without any Due Process - I don't think that makes us safe. I don't think Due Process would endanger the country. But it does risk that innocent people could be imprisoned for long periods of time without any protections.

ALI: Let's discuss the death penalty. The international human rights community has contentious debates on how the U.S. can maintain such a "progressive image," but at the same time tolerate the death penalty? From a constitutional point of view, is the death penalty "cruel and unusual punishment?" Do we have legal legs to stand on when we support the death penalty in the U.S.?

CHEMERINSKY: Well, it all comes down to defining that phrase: "cruel and unusual punishment." What is "cruel and unusual punishment"? The Supreme Court in 1972 ruled in Furman v. Georgia indicating that the death penalty is inherently cruel and unusual punishment. Then, by 1976 the Court in Gregg v. Georgia backed away from that. Today, there are a number of Justices on the Court that question how the death penalty should be applied within the United States.

The fact is a number of people on death row did not have competent counsel representing them. The fact is that innocent people were convicted and sentenced to death. And, I don't think we have a majority [of Justices] who want to identify the death penalty as cruel and unusual punishment, but certainly there are Justices who are implying that in their opinions.

ALI: What's your take on it?

CHEMERINSKY: I think that our criminal justice system is terribly flawed especially in its failure to provide adequate counsel to people who are facing death sentences. I think the great risk that innocent people might be sentenced to death - over 100 innocent people have been discovered to be on death row because of the work of the Innocence Project. I therefore think it would be much better to have severe punishments, like life in prison without the possibility of parole, rather than the death penalty. I think the death penalty, as currently applied, is cruel and unusual punishment.

ALI: People of color and those who are poor have complained about a blind justice system; a duality of a justice system that is harsher on them. Others say the laws are applied equally and these are just frivolous complaints. As a person who has studied the law so extensively, especially sentencing, does an inequity of justice occur with regards to class and color? If so, why?

CHEMERINSKY: Sure. Yes, there's tremendous inequality in the justice system. The poor often can't get lawyers nearly as good as those who are wealthy. Every way the poor are disadvantaged in the criminal justice system. Also color really matters - study after study has shown that if a Black and White offender commit the same crime, the same prior record or lack of it, the Black offender will get a lot more of a sentence than the White offender will. That's because racism persists - especially unconscious racism in our society.

ALI: What's the future now for affirmative action? We can't have quotas because that is seen as race preference. But affirmative action was started mostly as an ameliorative measure to address the racial inequality in America. How do we combat racial prejudice in the system when many say there is now equality and Obama's candidacy is the proof of that?

CHEMERINSKY: This is a country where slavery existed for the first 75 years; a country where segregation was mandated by law, allowed by the Supreme Court, until the mid 1950's. The legacy of those horrendous injustices continues to this day. The reality is without some form of affirmative action, key positions will only be held by a narrow category of people. Individuals of color, such as Blacks and Latinos, will be frozen out. I savor the day when we can be a colorblind constitution. But the time is now that we need affirmative action and it has to be color conscious.

ALI: There are complaints of many who say it's preference, and that there should be a "level playing field."

CHEMERINSKY: There's never been a level playing field. The reality is it's been easier to get into Harvard, Stanford or USC if you have a parent or grandparent who went there. But for a long time, those schools wouldn't pick many Jews or racial minorities. That's not a level playing field. No school accepts students just based on test scores and grades. It's been easier to get into Harvard if you're from Wyoming or North Dakota than if you're from Boston or New York - that's because they believe that diversity matters.

Well, what kind of diversity matters? Racial diversity [matters] as well - and it won't happen at elite schools without some form of affirmative action.

ALI: Speaking about schools, you're going to take over the newly created UCI Law School. There have been many unsolicited suggestions written online for you about what courses to teach, how to teach and so forth. Have you been privy to all the websites that have popped up?

CHEMERINSKY: I'm not a reader of blogs. But some people have printed them out and sent them to me and I do have them. I welcome any advice and suggestions.

ALI: Here's a question from some law professors: In California, especially, why do we need yet another law school and how will this law school be at all different?

CHEMERINSKY: I think we need another law school if it's going to be different from the rest. We don't need another law school like all the rest. I think the way in which we can be different and better is that we can do a much better job by preparing law students for the practice of law. I think we can also be a much better law school when it comes to interdisciplinary studies when compared to traditional law schools.


Wajahat Ali is a Muslim American of Pakistani descent. He is a playwright, essayist, humorist, and Attorney at Law, whose work, "The Domestic Crusaders" is the first major play about Muslim Americans living in a post 9-11 America. He can be reached via his blog is at http://goatmilk.wordpress.com/.