Kavanaugh looking dismayed and a little sad
Brett Kavanaugh testifies to the Senate Judiciary Committee during his Supreme Court confirmation, Sept. 27, 2018. (Photo/JTA-Win McNamee-Getty Images)

He made ‘The Case Against the Supreme Court’ long before Kavanaugh

UC Berkeley law school dean Erwin Chemerinsky warned about the failures of the Supreme Court and the flawed nomination process for the nation’s justices long before the confirmation battle over Brett Kavanaugh.

In his 2014 book “The Case Against the Supreme Court,” Chemerinsky wrote that the high court has a history of flawed rulings, such as ones that supported racial segregation and the internment of Japanese Americans during World War II.

He also wrote that the Supreme Court usually has a deep bias in favor of the wealthy and powerful, such as government and business, at the expense of individuals, There are “instances in which the Supreme Court sanctioned terrible injustices,” he writes in the book.

Chemerinsky’s views of the Supreme Court, including his public opposition to Kavanaugh’s confirmation, will be on vivid display on Tuesday, Oct. 23, at the JCC of the East Bay in Berkeley. He will be joined in the discussion by Jeffrey Edleson, dean of the UC Berkeley school of social welfare, an expert in domestic violence.

The scheduled two-hour event is part of “Raising Our Voices,” a yearlong series presented by the JCC that will examine the state of American democracy.

Chemerinsky smiling
Erwin Chemerinsky, dean of Berkeley Law (Photo/Berkeley Law)

Chemerinsky, one of 2,400 law professors nationwide who signed a public letter calling on the Senate to reject Kavanaugh’s nomination, told J. that Kavanaugh comes to the Supreme Court with a “tainted legitimacy” after getting through the confirmation process with the closest vote on a justice in U.S. history.

But he said it’s too early to tell if this will lead to a public revolt against the Supreme Court, which faced such sentiment in the 1930s when justices “clearly out of touch with society” voided much of President Franklin Roosevelt’s early New Deal legislation.

“Not only is there a cloud over Kavanaugh, but we also went through a time when the Republicans blocked consideration of [Obama nominee] Merrick Garland and eliminated the filibuster rule on nominations,” Chemerinsky said. “All of this taints the legitimacy of the Supreme Court, but will it matter? Will there be a constitutional crisis like there was in the 1930s? Will there be open opposition?”

Chemerinsky, 65, grew up in a working-class Jewish family in Chicago and was the first person in his family to attend college. He was finishing up degrees in political science and communications at Northwestern University and preparing for a career as a high school teacher in 1975 when he decided to take the LSAT because of his admiration for the lawyers who were instrumental in the civil rights movement. He got into Harvard Law School.

His career as a professor has included stops at DePaul, Duke, USC and UCLA. From 2008 to 2017, he was the founding dean of the UC Irvine law school.

While at Irvine, he got in a tussle with the Zionist Organization of America in 2010 over the way the administration handled incidents of heckling of visiting Israeli speakers. He defended the university in an op-ed, claiming “there is not a shred of evidence of anti-Semitism” on the campus.

He took over as dean and a professor at Berkeley in July 2017. He has written 10 books, and in both 2014 and 2017 National Jurist magazine called him the most influential person in legal education in the United States.

cover of "The Case Against the Supreme Court" by Erwin ChemerinskyIn “The Case Against the Supreme Court,” Chemerinsky proposed that justices be nominated only after they have been approved on merit by a bipartisan panel, and he endorses a proposal that Supreme Court justices be limited to one 18-year term instead of the current life appointment. He said the Kavanaugh nomination reinforced his belief those approaches would be helpful.

“I’m even more convinced now of what I wrote. The events of the Kavanaugh confirmation, of those surrounding Merrick Garland’s nomination, convince me we need a much better system,” he said. “Go to merit selection and create a blue-ribbon commission.”

Chemerinsky, who still argues cases before the Supreme Court, also has written extensively about the First Amendment and freedom of speech. He says universities must find a way to create a welcoming academic environment for all students while upholding free speech, even for those speakers who promote hate.

That has been a polarizing issue on the UC Berkeley campus, especially in the past year, as some left-wing groups have reacted violently when right-wing speakers such as former Breitbart News editor-at-large Ben Shapiro and conservative provocateur Milo Yiannopoulos visited the campus.

Chemerinsky stepped in last year when lawyer-commentator Alan Dershowitz, whose pro-Israel stance led to opposition from some campus groups, risked being blocked from UC Berkeley because of a school rule requiring eight weeks notice for such a speech. The dean issued an invitation to Dershowitz from Berkeley Law, allowing him to bypass that requirement.

Chemerinsky said his year on the Berkeley campus has reassured him that there’s a strong commitment to free speech by students and university administrators.

“If you walk across the Berkeley campus every day, you see people engaged in speech activities without any problem. There are tables set up and picket signs,” he said. “And go onto the internet, and you can see any possible opinion expressed. I think that free speech is alive and well.”

Erwin Chemerinsky in conversation with Jeffrey Edleson at 7 p.m. Tuesday, Oct. 23 at JCC East Bay, 1414 Walnut St., Berkeley. $15 general; $12 for JCC members. jcceastbay.org/raising-our-voices

Rob Gloster

Rob Gloster z"l was J.'s senior writer from 2016-2019.