Erwin Chemerinsky

Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

Recent Articles

Upholding the Rule of Law

The appellate court informs the president that he can’t end-run the Constitution.

AP/Elaine Thompson
In ruling against President Trump’s travel ban, the United States Court of Appeals for the Ninth Circuit reaffirmed a fundamental aspect of the rule of law: No one, not even the president, is above the law. Courts can review the actions of all government officials to ensure their compliance with the Constitution. The lawyers for President Trump argued to the Ninth Circuit that the president’s decisions on matters of immigration are unreviewable by any court. The court forcefully rejected that claim. The judges wrote: “[T]he government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions contravene constitutional rights and protections. … There is no precedent to support this claimed unreviewability, which runs counter to the fundamental structure of our constitutional democracy.” Long ago, in Marbury v. Madison in 1803, the...

Scalia, the Sequel

An originalist like Antonin Scalia, Neil Gorsuch is guided by 1787 thought processes, which made no provision for a right to privacy, or reproductive choice, or same-sex marriage.

AP Photo/Carolyn Kaster
Senate Democrats face a difficult decision: Do they filibuster Judge Neil Gorsuch’s appointment to the Supreme Court or confirm a justice they know will be very conservative? Senate Democrats are rightly outraged that Republicans stole this seat on the Supreme Court through the unprecedented refusal to hold hearings or a vote on the nomination of Chief Judge Merrick Garland. Everything known about Gorsuch is that he will be a reliable conservative vote across a wide range of constitutional and statutory questions. Democrats remember that there were 48 votes against Clarence Thomas and 42 against Samuel Alito—and in hindsight, that it was a huge mistake not to block them through filibusters. But filibustering Gorsuch risks the Republican majority in the Senate changing the rules to eliminate the filibuster for Supreme Court nominees. Also, there is no point in filibustering Gorsuch unless the Democrats are willing to do that for the nominees that would follow his rejection...

Awaiting Trump’s Pick

Two of the three favorites for a Supreme Court appointment are merely very conservative. The third is way very conservative. 

(Photo: AP/Cliff Owen)
Without a doubt, President Donald Trump’s pick for the Supreme Court will be very conservative—and the question is what Senate Democrats will do about it. Trump, of course, does not need to pick a justice from the far right. In light of the anger over the Republicans’ stonewalling of Chief Judge Merrick Garland’s nomination, Trump could pick someone from the middle who would be a consensus candidate. But as in selecting his cabinet and announcing his initial policies, Trump has shown zero interest in healing the partisan divide. The rumored frontrunners for the Supreme Court—Neil Gorsuch, Thomas Hardiman, and William Pryor—are all individuals highly recommended by the Heritage Foundation and the Federalist Society because each would be a conservative justice in the mold of Antonin Scalia. Neil Gorsuch, 49, is a judge on the United States Court of Appeals for the Tenth Circuit in Denver, nominated to that position by President George W. Bush. Gorsuch...

Justice at Risk

Trump’s nominee to succeed Scalia will restore a right-wing majority. One additional Trump appointee could undo rights established 50 years ago and more.

(Photo: AP/Susan Walsh)
This article appears in the Winter 2017 issue of The American Prospect magazine. Subscribe here . Will it be possible to protect the Supreme Court from Donald Trump’s presidency? Unfortunately, the answer to this question is not encouraging. Even optimistically assuming that Trump is a one-term president, he has the chance to reshape the federal judiciary for decades. His appointees to the bench are unlikely to find his policies to be unconstitutional. In fact, many of his frightening proposals would be difficult for any court to strike down. Thus it will be crucial to fight against the worst Trump nominees for the courts, even if blocking them may not be possible, and to use every available means to mobilize people to oppose the worst policies, even if stopping them often will prove impossible. We must hope that a successful coalition can be built with the relatively few moderate Republicans in Congress. At the very least, this can provide a foundation for effective campaigns...

What Next for Obama’s Immigration Action?

Even after the Supreme Court failed to overturn an anti-immigrant ruling, the president still has options.

Tom Williams/CQ Roll Call via AP Images
President Obama suffered a major defeat in the Supreme Court when the justices split 4-4 on the legality of his immigration action, Deferred Action for Parents of Americans (DAPA). The result of this deadlock is that a federal district court’s nationwide preliminary injunction keeping DAPA from going into effect remains in place. What options does President Obama have now? DAPA, which was announced by Obama in November 2014, provides deferred deportation status to undocumented individuals who have been in the country since 2010 if they do not have a criminal record and if they have a child who is a citizen or lawfully present in the United States. This would allow about four million people to live temporarily without constant fear of deportation and avoid separating parents from their children. Texas and 25 other states filed a lawsuit in federal court against DAPA. A conservative federal district court judge in Brownsville, Texas, Judge Andrew S. Hanen, found that the Obama...

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