“How Your Constitutional Rights Became Unenforceable” – 2018 McCormick Lecture – Erwin Chemerinsky
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“How Your Constitutional Rights Became Unenforceable” – 2018 McCormick Lecture – Erwin Chemerinsky


PRESENTER: Welcome. It’s wonderful to see so
many friends and supporters and colleagues here at
tonight’s [INAUDIBLE].. I have a brief and welcome
job, but a difficult one, because it is very hard to
introduce a close friend. At least it’s hard for
me, because I want to do my friend– and you
will excuse me– justice. I want to tell you
everything about his career as a reformer, teacher,
scholar, a leader so prominent that just last year, he was
named the most influential person in legal education,
which not a single person in legal education
needed the poll to know. I want you to know what I know. Beyond his long list
of accomplishments that are just briefly
summarized in your program, beyond the 10 books and
hundreds of articles, beyond being one of the most
highly cited constitutional law scholars in the nation, beyond
having a speaking schedule that touring rock stars
would be jealous of, or a Google search that
produces 119,000 results 1.5 seconds, what
I want you to know is that he is a lifelong
student, who as a young man, was drawn to the law during
the Civil Rights Movement, who still believes, to this day,
in the power and possibility of social change. That he is a scholar
and teacher who can take others into
the most contested, most controversial, most
difficult waters and navigate successfully. He’s a speaker who
thinks in paragraphs and speaks in paragraphs, and
can not only recite and debate cases, but for those of
us who even partially work in his field, are
astounded when he not only cites cases, but
can debate footnotes just out of the air. A public intellectual who
can still identify the oak undertones of fine wine. A person who always
seems genuinely surprised when friends like
me recount all of his extraordinary
accomplishments as a great leader. A newspaper reporter
once referred to him as a soft-spoken man with
understated but unmistakable gravitas. A brief story is
how Erwin navigated the start of his first and
famous founding deanship at UC Irvine. California politics
are, at times, Cesare Borgia’s Italy to
Arizona’s Athenian democracy now. I understand why
you’re laughing, but it’s a fair comparison. Erwin found his offer of the
founding deanship challenged in the way that was both murky
and fully in public view. He was offered the job,
offer was withdrawn, a hurricane of support came
from across the political and ideological spectrum. The hidden critics retreated
and placed the blame on Irvine’s chancellor. Public calls came for Erwin to
be again offered the deanship, but only on the condition
that the chancellor be gone. In a move reminiscent of
neither Venice nor Athens, and more in the spirit
of Nelson Mandela, Erwin said he would graciously
accept the challenge and opportunity to be
Irvine’s founding dean, but only on the condition
the chancellor remain. He has been a great friend
to me and to my family. He’s also been a
friend to our college at a key moment in our
history, indeed a key moment, I think, in legal education. We were changing the law
school admissions process to be more accessible. It was Erwin who instantly–
and I literally mean instantly. I mean minutes
after a phone call, led the defense of our college
and its innovative spirit. And by giving his focus and
powerful voice to our efforts, he brought along– and again, I mean
this literally– the entire profession of legal
education to our support. Please join me in
welcoming Erwin Chemerinsky in a conversation with
Professor Andrew Coan. [APPLAUSE] ERWIN CHEMERINSKY: I’ve
been fortunate enough to be introduced a
number of times in life. I don’t think I’ve
ever been this touched by an introduction like that. It means so much to me that
you would say those things, and it’s enormously
special for me to be here. And as I was saying to
Tony [INAUDIBLE],, anything that Tony and Mark
would ever ask me to do, I would immediately say yes
because they’re such incredibly special people and
Mark’s a dear friend. And you’re so unbelievably
fortunate to have Mark as the dean of this law school. [APPLAUSE] INTERVIEWER: Thank you, Mark. Thank you, Tony. Welcome, Erwin. This evening, Dean
Chemerinsky and I will be discussing his recent
book, Closing the Courthouse Door – How Your Constitutional
Rights Became Unenforceable. Why did you write this book? ERWIN CHEMERINSKY:
If the Supreme Court were to say that
the government can give a limited amount of
money to parochial schools, that would be headlines
of every newspaper. But if the Supreme
Court were to say no one has standing to
challenge the government’s aid to parochial schools, you
wouldn’t pay any attention to that. And yet, the effect
is exactly the same in terms of real world impact. And one of the
things that occurred to me as a teacher, a
scholar, a litigator, is how much the Supreme
Court, over the last decades, has closed the courthouse doors. And the result is that people
who’ve been seriously injured, whose most precious
rights have been violated, have no opportunity for redress. And if there’s no remedy, it’s
as if the right doesn’t exist, and I wrote the book
to tell that story. INTERVIEWER: I’d like to start
with a few background questions to orient the audience. What is the purpose
of a constitution? ERWIN CHEMERINSKY:
Obviously, the Constitution exists to create the government. Any constitution does that. But I also think
the constitution exists to limit what
the government can do. That’s particularly true of
the United States Constitution. The Constitution came
about only after the values of the Articles
of Confederation. Creating a national
government was thought of as a necessary evil. And the framers of
the Constitution were just as concerned
about limiting federal power as empowering the federal
government to be able to act. And so I think that
the Constitution exists to restrict what the
government can do, especially in times when the majority
might want to do something else. There’s something
profoundly antimajoritarian about our constitution. [INAUDIBLE] Think about it. What makes the Constitution
different from all other laws? Any other law can be
changed by the majority of the legislature. Any law passed by Congress,
[INAUDIBLE] Congress can change. Any law adopted by the Arizona
State Legislature or the Tucson City Council can be changed by
the Arizona State Legislature or the Tucson City Council. But to change the
Constitution takes 2/3 vote in both
houses of Congress, and 3/4 vote of the statees. And this is the procedure
that’s always been used to amend the Constitution. The Constitution has been
amended only 17 times since 1791. And then you have to ask,
why would a nation that thinks of itself
as a democracy want to be governed by a document
so difficult to change? None of us obviously played
any role in ratifying it. Most of us didn’t have
ancestors in this country who played any role. And my answer to
that question then becomes how desirable it is to
put our most precious values– the structure of government,
individual rights– in a document that’s
difficult to change. I think it’s, in being
antimajoritarian, also very concerned
with protecting the rights of the minority. The majority usually
doesn’t need a constitution to protect it. It can use the political
process to protect itself. It’s minorities who
need that protection, and so I think that’s another
key function of the American Constitution. INTERVIEWER: Why do we
have federal courts? ERWIN CHEMERINSKY: There’s
a day, the Constitutional Convention in 1787, about
what to do with regard to the federal courts. Under the Articles
of Confederation, there weren’t federal courts. It was quickly agreed at the
Constitutional Convention that there should be a
United States Supreme Court, but there was disagreement
as to whether to have lower federal courts. Some believed that it
was unnecessary to have lower federal courts. We could just have state courts
and the United States Supreme Court. Others believed that it
was essential to have lower federal courts. The [INAUDIBLE] state
courts might be parochial. They might favor their own
citizens over out-of-staters. They might favor their
own state interests over national interests
in the Constitution. And so, unable to resolve that
dispute, the framers punted. They said, we’ll just leave
it to Congress to decide. And the Constitution in
Article III Section 1 says that there will be a
Supreme Court and such lower federal courts as Congress
ordain and establish them. But since the first
Judiciary Act in 1789, there’s always been
lower federal courts. And I think it’s based on
the recognition that however wonderful the state judiciaries
are, there’s times when they’re going to be or be perceived as
pro-kill, biased for in-staters over out-of-staters,
favoring state interests over national
interests in the Constitution. So if you ask me why
we have federal courts, it’s to enforce the
Constitution and laws the United States above all else. INTERVIEWER: What
makes federal courts specially well-suited
to this war on enforcing the Constitution? ERWIN CHEMERINSKY:
Article III Section 1 also says that the Supreme Court,
and other courts Congress would create, shall have life tenure. They have their positions for
life unless they’re impeached or resign, and their
salaries can’t be decreased in their term of office. And I think that’s
absolutely essential to ensure judicial
independence and to enforce the Constitution. I also think that role matters
enormously in behavior. Social psychologists
have long told us that you assign somebody
a role, it powerfully influences how they perform. We said in the beginning,
one of the key roles of the federal courts is
to enforce the Constitution and enforce federal law. INTERVIEWER: In the
book, you identify a number of doctrines
that deny remedies to persons whose constitutional
rights have been violated. I’d like to quickly run
through several of them. What is sovereign immunity? ERWIN CHEMERINSKY: Sovereign
immunity is the principle that the government cannot be sued,
except with its own consent. It actually comes from English
law in the [INAUDIBLE],, that the king can do no wrong. So to make this specific
rather than abstract, the United States
government cannot be sued, except to the extent
Congress has passed a statute authorizing suits against
the United States government. State governments
cannot be sued, except to the extent that
they consent to be sued, with a few other
minor exceptions. I think sovereign immunity is
at odds with the Constitution. It puts the institution,
government– the United States state governments– above
enforcing the Constitution. The Constitution
says in Article VI that the Constitution and the
laws and treaties [INAUDIBLE] are the supreme law of the land. But then sovereign
immunity means that the government can
violate the Constitution and not be held accountable. INTERVIEWER: What is
qualified immunity? ERWIN CHEMERINSKY: Whenever an
individual government official is sued for money
damages, he or she always has this defense immunity. Some government officers
for particular tasks have what’s called
absolute immunity. That means they can’t be sued
for money damages at all. Judges for the judicial
tasks have absolute immunity. There’s what I think is an
egregious Supreme Court case, Stump v. Sparkman, and it
involves a woman in Indiana who went to see a
judge in his chambers. She said she was worried about
her teenage girl, her daughter. She said her daughter
was staying out at night. She was worried her daughter
was getting in trouble, and she asked the
judge to sign an order to have surgical sterilization
performed on her daughter. The judge had no authority
under Indiana law to order this. No case was ever filed
in the judge’s court. No docket number
was ever assigned. No notice was ever
given to the girl. No hearing was ever held. The judge signed the order. The girl was told she was
having an appendectomy. Only many years later did she
learn that tubal ligation was performed, when she was married
and unable to conceive a child. She sued the judge. The Supreme Court ruled
five to four in an opinion by Justice Byron White that the
judge had absolutely immunity to civil suits
for money damages, so judges can’t be sued
for what they do as judges. Prosecutors have
absolute immunity for their prosecutorial tasks. So there’s this case, Imbler
v. Pachtman from 1976, that involves a
prosecutor who knowingly used perjured testimony
that led to the conviction of an innocent person. He spent nine years in prison. When ultimately,
the real culprit was found and convicted, the
individual sued the prosecutor. The evidence was overwhelming
that the prosecutor knew that he was using
perjured testimony, but the Supreme Court
said prosecutors have absolute
immunity and can’t be sued for money damages for
what they do in that role. Legislators have
absolute immunity for their legislative tasks. The president has
absolute immunity for acts taken in carrying
out the Office of President. Police officers have
absolute immunity for the testimony they
give as witnesses. If a police officer lies
on the witness stand and leads to the conviction
of an innocent person, the police officer can’t
be sued for money damages. There’s absolute immunity. That was the holding of
Briscoe v. LaHue in 1983. For all government officers who
don’t have absolute immunity, they have what’s called
qualified immunity. That’s how I’ll get
to your question. And the Supreme Court has said
that a government officer can be sued for money damages,
qualified immunity overcome only if it’s proven
that the officer violated clearly established law that
every reasonable officer would know, and it has to
be a right that’s established beyond dispute. Again, I know that
sounds abstract, so let me give a
concrete example, and let me give one from
the state of Arizona. There’s a case not long ago,
Safford Unified School District v. Redding from 2009. It involved a middle school
student, Savana Redding. She was suspected of giving
prescription-strength ibuprofen to another student
in the school. One of the things that I learned
as a result of this litigation is that the only difference
between prescription-strength ibuprofen and
regular-strength ibuprofen is the amount in the
capsule, that any of us could take prescription-strength
ibuprofen just by taking several
regular-strength ibuprofen. See, Savana Redding was taken
by two female school officials into a classroom. She was ordered to remove
all of her outer clothes. She was ordered to pull
out her bra and underpants so the school officials could
peer in and see whether or not she was hiding ibuprofen. She wasn’t. Her parents sued the school
officials who did this. Now school officials don’t
have absolute immunity, but they’re only liable
for money damages if you overcome
qualified immunity. The Supreme Court
ruled eight to one that strip searching
Savana Redding violated her Fourth
Amendment rights. But the same opinion, the
court ruled seven to two that the school
officials could not be held liable for money damages
because they didn’t violate a clearly established law that
every reasonable officer should know. They said the law
wasn’t clear that strip searching in this context
violated the Constitution. Now, I would question that. I would be with the dissent. Shouldn’t any school official
know that what was done here was degrading and
unconstitutional? But this is an example where
qualified immunity prevented liability. And I can go through so many
examples in recent years, and I obviously put some in the
book, where qualified immunity meant that government officials
who violate the Constitution could not be held accountable. And more important,
those who were injured were left without any remedy. INTERVIEWER: Unlike federal
and state governments, local governments are not
formally immune from suit, but it is still very difficult
to sue them successfully. Why? ERWIN CHEMERINSKY: In 1978, in
Monell v. Department of Social Services, the Supreme Court
held that a local government can be held liable only if
its own policy violates the constitutional laws
of the United States. It can’t be held
liable on the grounds that an employee has
acted in violation of the constitutional
laws of the United States. For any other kind of
employer, if an employee, in the scope of his or her
duties, injures people, the employer’s liable. If a UPS driver while on the
job hits somebody and injures the person, UPS is liable. There’s even a name
for this in law. It’s called respondeat
superior liability, and it just says the
employer is liable if the employee injures people
in the scope of the employee’s duties. But in Monell v. Department
of Social Services, the Supreme Court said that
local governments can’t be held liable on that basis. Local governments
can be liable only if you can prove that
they have a policy that violates the Constitution. So imagine a police officer
uses excessive force. A police officer kills
somebody in the line of duty. You could only hold the
local government liable if you can prove that
the local government had a policy that caused that. You immediately can
see how difficult that would be to accomplish. INTERVIEWER: What
is a Bivins action? ERWIN CHEMERINSKY:
It might surprise you that if the government
violates the Constitution, you generally can’t sue
right under the Constitution. You might think if the
Tucson City Council violates your First Amendment
rights, you just sue them for violating the
First Amendment, right? Or a police officer
conducts an illegal search, you’d sue the police officer for
violating the Fourth Amendment. But it generally
doesn’t work that way. There usually needs to be some
law that allows you to sue. And when it comes
to local governments and state and local officials,
the law of the lawsuit was adopted in 1871. At the time it was
called the Ku Klux Klan. It’s codified now as 42 United
States Code Section 1983. And anytime you want to sue a
local government for violating First Amendment rights, or a
state or local police officer for excessive force, or
anything else in terms of constitutional violations,
in all violations of the law, you file a 1983 suit. And 1983 is simply
a statute that allows you to sue to
enforce the Constitution. Virtually all
constitutional litigation in the United States
against local governments and state and local officials
is brought as a 1983 suit. But there is no similar
statute that authorizes suits against federal officials. And in 1971, in Bivens v.
Six Unknown Named Agents of the Federal
Bureau of Narcotics, the Supreme Court
said it would allow a suit against federal officers
right under the constitutional [INAUDIBLE] itself. Again, to make this less
abstract and more concrete, agents of the Federal
Bureau of Narcotics went into Webster Bivens’ house
in the middle of the night. They conducted an
incredibly abusive search. They made him stand naked
while they ransacked the place. He wanted to be able to sue. He couldn’t sue the
United States government, because at the time, there’s not
statute that would allow that. So if he wants any
remedy, he’s got to be able to sue
the federal officers. But there’s no statute
like Section 1983 to allow a suit against
federal officers. And so he sued under
the Fourth Amendment. And the Supreme Court, in an
opinion by Justice William Brennan said that when it
comes to federal officers, violating the Fourth Amendment
would cause an action. A claim for money damages
would be inferred. Justice Harlan wrote
a concurring opinion. He said, for people in Bivens’
shoes, its damages are nothing, and therefore, they
[INAUDIBLE] wanted to create a damage revenue. Now, the problem with this,
and I’m going to get to it, is that since 1980, which is now
a long time ago, 38 years ago, the Supreme Court has
continually cut back on Bivens, and in fact does not rule
in favor of a Bivens suit during those 38 years. INTERVIEWER: What is
Article III standing? ERWIN CHEMERINSKY:
I feel like I’m going to teach the whole
federal court [INAUDIBLE].. INTERVIEWER: It’s
been half an hour. ERWIN CHEMERINSKY: It feels
like a good final exam question. Article III Section 2
lists the kinds of cases that federal courts can hear. It has been established since
early in American history that a federal court
can only hear a case if Article III allows it. There also has to be a federal
statute that authorizes it. And federal courts
can’t hear anything unless Article III permits it. Even if the parties consent and
want to go to federal court, unless Article III
permits it, unless there’s a federal statute,
the federal court just can’t hear that case. Article III Section 2
lists nine types of matters that federal courts can hear. And each of those
nine categories is preceded with the word cases
or the word controversies. And the Supreme Court has
interpreted those words, cases and controversies, to give rise
to a series of limits on what federal courts can hear. And one of those limits is what
you just referred to, standing. The Supreme Court has
said standing demands that a person show a
sufficient personal interest in the outcome of the case,
so that the person should be able to come to court. And so, in order
for someone to have standing in the federal
court, the person has to show that he or she
has been personally injured, that the injury has been
caused by the defendant, and that a favorable
court ruling is likely to remedy the harm. Again, I’m worried this
sounds so abstract, so let me give you
a concrete example. It’s a case called City of
Los Angeles v. Lyons in 1982. Adolph Lyons was at the time
a 24-year-old African-American man. He was stopped by a
police officer at 2:00 in the morning for having
a blown out tail light. The officer ordered Lyons
out of his car, [INAUDIBLE].. And the officer slammed
Lyons’ hands above his head. Lyons had his keys in
his hand, so the effect of slamming his hands
on the roof of the car was the keys were cutting
into the skin of his palm. He complained of
this to the officer. The officer then administered
the choke hold on Lyons, literally put his arm
around Lyons’ neck and choked him until
Lyons became unconscious. Lyons awoke. He was spitting blood and dirt. He had urinated and defecated. The officer gave Lyons a
traffic ticket and let him go. Lyons did some research, and
he discovered to that point, 16 people in Los Angeles– most all [INAUDIBLE]
African-American men– had died from police
use of the choke hold. Lyons sued the city of Los
Angeles, Los Angeles Police Department, for an injunction
to keep the police from using the choke hold except
when necessary to protect the officer’s life or safety. But the the Supreme
Court ruled five to four that Lyons lacked standing
in his seeking injunction. The Supreme Court
said Lyons could not show that he personally
was likely to be choked again in the future. The Supreme Court said
a plaintiff like Lyons, who wants an
injunction, has to show that he or she is likely to
be personally injured again in the future. Think of all the things that
the government might do. We know it will harm somebody,
but we can’t know who. The effect of Lyons you
can’t [INAUDIBLE] standing in those instances. INTERVIEWER: So I
want to ask you just about one last
doctrine, and I want to emphasize to the
audience that I [INAUDIBLE] half of the court
limiting doctrines that are discussed in the book,
but we’ll [INAUDIBLE] here for tonight. What is the critical
question, doctor? ERWIN CHEMERINSKY:
The Supreme Court has said that there are certain
constitutional provisions that won’t be interpreted or enforced
by the federal government, the federal courts. There are certain
constitutional provisions that are left to the other
branches of government, the political branches
of government, to interpret and enforce. Let me give you some
examples of this. There a clause in Article IV
Section 4 of the Constitution that says the United States
shall guarantee to each state a Republican form of government. This has nothing to do
with political party. The framers thought that a
Republican form of government was one where people would
elect representatives, and the representatives
would then make the laws. Ever since the 1840s,
the Supreme Court has said that cases under the
Republican form of government clause are a
political [INAUDIBLE] the courts won’t adjudicate it. Let me again give you
a concrete example. I think that partisan
gerrymandering is one of the real threats
to our democratic system. I know Arizona has an
independent district and commission. California does, but
Arizona and California are the minority here. Partisan gerrymandering,
of course, is where the political party
that controls the legislature draws election
districts to maximize their seats for that party. It’s not a new practice. It takes its name from a
governor of Massachusetts early in American
history, Elbridge Gerry, who engaged in the practice. But what’s changed
now is that it’s possible to engage in partisan
gerrymandering with far more precision and
accuracy than ever before. Sophisticated computer programs
and longitudinal studies mean that are partisan
gerrymandering can be far more successful. We all learn, maybe
in a civics class, that it’s voters who
are supposed to choose their elected officials. But the effective
price of gerrymandering is they let the officials
get to choose their voters. In 2004, in Vieth v.
Jubelirer, the Supreme Court said federal courts can’t
hear if it challenges partisan gerrymandering. That poses a political question. I’ll give you another example. The Supreme Court has
said the challenges to the president’s conduct
with foreign policy pose political questions. There’s a famous case
involving Arizona Senator Barry Goldwater. President Jimmy Carter rescinded
to the United States treaty with Taiwan for recognizing
the People’s Republic of China. Senator Goldwater
brought a lawsuit and said, just as the Senate
has to approve a treaty, so should the Senate have to
approve rescission of a treaty. When it comes to
repealing a law, Congress has to
be involved there. Likewise, [INAUDIBLE]
rescission of the treaty. So the Supreme
Court said this is a challenge of the president’s
conduct of foreign policy, the courts won’t adjudicate. So even if what the president
was doing was unconstitutional, no court could hear the matter. When George W.
Bush was president, he rescinded the Anti-Ballistic
Missile Treaty with Russia. No court could hear or
challenge that, even if what the president was
doing was unconstitutional. INTERVIEWER: How would you
sum up the [INAUDIBLE] impact of the doctrines
we’ve just discussed? ERWIN CHEMERINSKY:
Each of the doctrines that we’ve talked about means
that people whose rights are violated won’t be able
to have access to the courts, they won’t be able
to get a remedy, there isn’t a way to hold
the government accountable. And if you add all
of these together– and there are others in the
book as you’ve pointed out– it means that we’re really
undermining the Constitution. It means we’re really
closing the courthouse doors. And it may be that
you’re familiar with some of the doctrines we’re talking
about, maybe many of them, but it may also be that
these are doctrines that aren’t familiar to you
because I started by saying, these aren’t the things
that make headlines. The front page of
the New York Times doesn’t write about the
political [INAUDIBLE] doctrine, or about the 11th Amendment
sovereign immunity, or about qualified immunity. And that’s what, to me,
makes it so insidious. It’s taking away our rights
without our realizing it by depriving us of any
remedy when they’re violated. INTERVIEWER: What should the
Supreme Court do differently? ERWIN CHEMERINSKY: All of the
doctrines that I have described are judicially created. Some come from the court
interpreting the Constitution, like standing that
comes from Article III, some come from the Supreme
Court interpreting the statutes. I would have liked to see
the Supreme Court change the constitutional
doctrines, and see Congress change the statutory doctrines. Now, I’ll tell you that the book
has a 2017 publication date. It was finished a
year before that. As you know so well with your
book, it takes about a year after you’ve finished
the manuscript before you have the joy of
holding the volume of the book. And so I finished
the book at a time when I thought there might
be an ideological shift on the Supreme Court. And almost all of the cases
that I’ve described to you were 5-4 decisions. Almost all were split
along ideological lines. Vieth v. Jubelirer was 5-4
with a [INAUDIBLE] majority. Lyons v. Los Angeles was. Stump v. Sparkman was and so on. And so I wrote the book
focusing on what the Supreme Court should do
differently and what Congress should do differently. And I end each chapter with
very specific prescriptions for how to change the law. Obviously, we don’t have an
ideological shift on the court, and it’s less likely that these
changes are going to come about in the years ahead. INTERVIEWER: Let’s discuss
some counter arguments. Without immunity from suit,
the police and other government officials will be afraid
to do their jobs, which are difficult,
which are important, and which pay little compared
to the private sector. This would make
us all worse off. How do you respond? ERWIN CHEMERINSKY: The
choice isn’t no liability or strict liability. There are middle places
that we could choose. So I would say, for instance,
if a police officer commits a deliberate wrong, lies in
court, commits perjury, there, I would vote towards
no immunity whatsoever. But if a police
officer is exercising reasonable discretion
at the time, then I would provide the
police officer immunity. So I think that my
response to the question is, I think it makes a
false assumption that we have to choose between no
immunity and total liability. And I want to provide police
protection for what they’re doing, but I don’t want
to provide them protection if they’re lying in court. INTERVIEWER: In defense of the
political question, doctor, Yale law professor
Alexander Bickel observed that no society
can fail in time to explode if it is deprived of
the arts of compromise but knows no way of
muddling through. Don’t the courts need some
way to avoid deciding cases that, for whatever reason,
other actors are better suited to decide? ERWIN CHEMERINSKY:
Again, I think that the question has a
false assumption that it’s the judiciary who decides
everything on its own, or the judiciary
decides nothing. The judiciary often
can and does defer to the judgments of other
branches of government. When it comes to matters
of foreign policy, the court can decide
to give deference to the expertise
of the executive conducting foreign policy. But I reject the idea
that there should be constitutional
provisions where the federal courts can never
hear challenges under them. Marbury v. Madison
in 1803 told us that the Constitution is
meant to limit government, and those limits are meaningless
unless they can be enforced. And where the Supreme
Court says there’s a constitutional provision
that can’t be adjudicated by the federal courts,
where cases are always a political question,
that’s the same as [INAUDIBLE] out
of the Constitution. The Constitution is
the same as if there wasn’t the provision
of Article IV that says the United States shall
guarantee to each state a Republican form of government. The court has made that
a meaningless provision, and I don’t think there should
be meaningless provisions in the Constitution. INTERVIEWER: Without the
immunity in the standing doctrines, you criticize
the federal courts will be overwhelmed by
a flood of litigation. True or false? ERWIN CHEMERINSKY:
I think it’s false, and I don’t think it matters. I think it’s false because
the reality is litigation is expensive, and
there are plenty of techniques that courts have
for managing their doctrines, but also the assumption
of the question is that expediency,
saving resources, is more important than
enforcing the Constitution. Eliminating these
doctrines really leads to a lot more cases, let’s
create more federal judges, but let’s not leave the
Constitution unenforced for the sake of efficiency. INTERVIEWER: Without
sovereign immunity, states will be demoted
from co-equal sovereigns to mere field offices of
the federal government, allowing the dignity
and the stature required to fulfill their constitutional
role as counterweights to federal power. How would you respond? ERWIN CHEMERINSKY: Article
VI of the Constitution says, the constitution
of laws and treaties made pursuant of the
supreme law of the land. If a state can violate the
Constitution and federal law, and nowhere be held
accountable, the [INAUDIBLE] ensure the supremacy
of federal law. Let me give you an example that
I’m very focused on right now. It’s a case called Franchise
Tax Board v. Hyatt. And I’m focused on
this because I’m going to argue it in the
Supreme Court the first week of January, and my brief
is due in the Supreme Court November 15, and I’m
determined to finish a first draft of my brief
by the end of this weekend. My client’s Gilbert Hyatt. He is an inventor,
he has many patents. He moved from California
to Nevada in 1991. The Franchise Tax Board, which
is responsible for collecting taxes in the state
of California thought it was a sham move
to evade taxes, and they went after him
in every way they could. And the person who
was responsible for the investigation said very
anti-Semitic things about him as to why they were
going after him. And they invaded his
privacy, his property. They defamed him. They revealed private
information about him publicly. He sued the State of California,
the Franchise Tax Board, in Nevada state court. Now, sovereign immunity,
which we were talking about, means a state can’t be
sued in federal court. The Supreme Court said
in 1999 in Alden v. Maine that a state can’t be sued
in its own state court. But the one area where sovereign
immunity doesn’t preclude suit is a state can be sued in
another state’s courts. That’s a Supreme Court decision,
Nevada v. Hall In 1977. So Gil Hyatt,
resident of Nevada, sues the Franchise Tax Board
in state trial court in Nevada. The jury awards him
$389 million in damages, in compensatory
punitive damages. And that’s a reflection of how
truly egregious the conduct against him was by the
Franchise Tax Board, and I could go on and on and
on in detailing the things that they did to him. The Nevada Supreme Court
largely affirms the [INAUDIBLE] liability in damages. To make a long story short–
and this is the third time this case is going to be
before the Supreme Court– the issue that’s
now before them, and it’s the only issue
for [INAUDIBLE] case is whether Nevada v.
Hall should be overruled. If Nevada v. Hall is
overruled, then how can people who are
injured have any remedy against state governments? The Supreme Court ruled in
1999 that a state government can’t be sued for capital
copyright infringement. The example I give
to my students is, imagine a
constitutional law professor who has a case
textbook that they use at a number of law schools. Imagine a professor
at a state university, rather than have the students
buy this book, simply copies it and distributes it to
the students for free. And imagine also this
hypothetical law professor is saving the book royalties for
his four children’s’ college education. The hypothetical law
professor is out of luck. He can’t sue the state
because the state has sovereign immunity, and suing
the individual professor [INAUDIBLE] what we
talked about earlier with qualified immunity. So I think, if we’re
going to take seriously enforcing the Constitution in
the laws of the United States, when state governments violate
it, there has to be a remedy. There must be reform. And that’s why this
sovereign immunity, I think, is [INAUDIBLE] with the
principle of the Constitution, and that’s what I’ve been trying
to argue in the Supreme Court chamber, and why they shouldn’t
overrule the damages law. INTERVIEWER: So the principle
that every right requires a remedy, which is
central to the book, sounds awful good in theory,
but constitutional rights are, to a large extent, in
the eye of the beholder. Guaranteeing a judicial forum
for every constitutional claim simply allows five
unelected judges to impose their views
on the rest of us. Here, I’m just channeling
possible objections to your argument. Given the present
composition of the court, that’s likely to be good
for wealthy individuals, big businesses, conservative
Christians, and bad for labor unions, the poor, consumers,
and racial and religious minorities. Think of cases like Janus v.
AFSCME, Citizens United, Shelby County v. Holder, [INAUDIBLE],,
and Gratz v. Bollinger. Not to mention Lochner
v. New York, [INAUDIBLE] and a number of
state [INAUDIBLE] and the civil rights cases. How would you respond? ERWIN CHEMERINSKY: I agree
with all of your examples in that I wrote a book a few
years before this one titled The Case Against
the Supreme Court, and the thesis of that book
is that the Supreme Court has often failed through
American history, often in the most
important tasks of the most important kinds. The question is, what
conclusion do we draw from it? Some scholars draw
the conclusion that we’d be better
off without having a Supreme Court with the power
to strike down government actions, that we should
leave the enforcement of the Constitution to
the political process. Mark Tushnet who’s a famous
professor at Harvard Law School, who wrote a book titled
Taking the Constitution Away from the Courts
would argue this. Larry Kramer, who by the way is
a law school classmate of Dean Miller, wrote a book calling
for popular constitutionalism and the end of
judicial sovereignty. James MacGregor Burns
won a Pulitzer Prize for the book he wrote calling
for the end of judicial review. It’s tempting to come to
that conclusion in light of everything you
say, but I disagree. I think of the people who I’ve
represented through my career as a lawyer. I’ve argued a couple
of death penalty cases in federal courts of appeals. I represented a Guantanamo
detainee for many years. I represented a
homeless man in Texas challenging the Ten
Commandments monument that sits right in the corner
of the Texas State Capital in Texas Supreme Court. I represented a person
who was sentenced to 50 years to life
in prison for stealing $153 worth of videotapes,
California’s three strikes law. And I realize for
people like my clients, it’s the courts to protect
their rights, or it’s nothing. When was the last time a
legislature adopted a law to give more rights to
criminal defendants who do more to protect [INAUDIBLE] rights? It might mean that my clients
will lose in the courts, and I’ve lost many of the cases
that I just mentioned to you, but I don’t think we can leave
the Constitution’s enforcement to the political process. And so I continue to
believe that we’re better off as a society having
an institution like the Supreme Court largely insulated
in majoritarian politics to give meaning to and to
enforce the Constitution. And since at times,
I can be shameless, I’ll plug my new book that’s
coming out in November. It’s titled We the People
– A Progressive Reading of the Constitution for
the Twenty-First Century, in which I argue that even in
the face of the conservative court that you described,
conservative court for years to come, progressives
should continue to believe in the Constitution which I
argue for how progressives should interpret and
advocate for that document. INTERVIEWER: In
the last minutes, I’d like to look ahead. The Supreme Court is at
an historic turning point. After Anthony
Kennedy’s retirement and Brett Kavanaugh’s
confirmation, the court lacks a swing
justice for the first time in many decades. Going forward, most
contentious decisions seem highly likely to break
down along not just strictly ideological lines or
strictly partisan lines, but the five Republicans voting
[INAUDIBLE] four Democrats, or five justices appointed
by Republican presidents voting one way, and
five justices appointed by Democratic presidents
voting the other way, for the first time in the
court’s mired history. And to top it all
off, four members of the current
conservative majority were confirmed by senators
representing a minority of the national population. Two were appointed
by a president who lost the popular vote. One, Justice Gorsuch,
was appointed to a seat that many Democrats believe
was stolen from President Obama and his nominee. [INAUDIBLE] Kavanaugh
was confirmed over the opposition of a
strong plurality of Americans after perhaps the most
divisive judicial confirmation in American history. If the court’s role
is to serve as a check on popular majorities,
does it matter that so many of the
current justices were appointed and confirmed
by officials representing the minority of the electorate? Might this even be a strength? ERWIN CHEMERINSKY:
I’m less concerned that the justices were appointed
by presidents representing the minority of the
population, and I am concerned by all the
things you mentioned that I think taint the
legitimacy of the court in the public’s eyes. I’ll start with what you
point out quite rightly. This is the first time
in American history, at least that I know of, where
the ideology of the justices corresponds to the political
party of the president who appointed them. The five conservative
justices who were appointed by Republican
presidents and the four liberal justices who were
appointed by Democrats, that’s a new phenomena. Until recently, we had
ultimately liberal justices on the court. John Paul Stevens [INAUDIBLE]
by Republican presidents. We have conservative justices
like Byron White or Felix Frankfurter who were appointed
by Democratic presidents. So I think this
heightens the sense that the Supreme Court
is just an extension of partisan politics. But then, what you talked about
in a slightly different frame in terms of what it
means with regard of how the public
perceives the justices. Clarence Thomas was confirmed
in 1991 by the 52 to 48 under the cloud of
lack of legitimacy that came from the
[INAUDIBLE] hearings, and the widespread perception
that he flat-out lied. In terms of John Roberts
and Samuel Alito, they’re likely on the court
because of Bush versus Gore, that many regard as nothing more
than the five justices saying, we want the Republican
as president [INAUDIBLE] in American history. Neil Gorsuch. Prior of 2016, 24 times
in American history, there has been a vacant seat in
the last year of a president’s term. In 21 of 24 instances,
the Senate confirmed. In three instances, the
Senate denied conformation. But never before
had the Senate said, we’re not going to
hold hearings or vote on a presidential nominee. Merrick Garland’s
nomination language was longer than any
Supreme Court nomination in American history. It’s the first time that a
political party openly said, we’re not going
allow a president to fill a vacant
seat on the court, no matter how qualified the
nominee, because we want to hold this seat open
in case our party wins the presidency in
the coming election. And then Neil
Gorsuch was confirmed only because the Senate
Republicans eliminated the filibuster for
Supreme Court nominations. And whatever your perceptions
of a couple of weeks ago, with regard to the Brett
Kavanaugh hearings, there’s no doubt that his
legitimacy is tainted. Beyond his ideology,
beyond whether you believe that he was lying
or telling the truth, never has a nominee for
the Supreme Court made such a boldly partisan statement
as he did when he came before of the Senate
Judiciary Committee on that Thursday afternoon. So I think all of this combines
to undermine the legitimacy of the Supreme Court. I don’t know what it’s going
to mean in the long term. I don’t know what it
means that the legitimacy of the other institutions
of the federal government are at the lowest
point in recent memory. We have a president–
again, this isn’t a partisan
statement, but his approval rating has hovered around 35%
throughout his term in office. For Congress, the approval
rating’s about 18, and I think that’s
18 people, not 18%. And for the Supreme
Court, I don’t know if this cloud with
regard to legitimacy will mean that
we’ll have a point like the constitutional crisis
that occurred in the 1930s surrounding the Supreme
Court, or if it’s going to lead to a point where
government officials feel more free to disobey court orders,
or if the Democrats take the presidency in
Congress in 2020, if they’ll try to increase
the size of the Supreme Court. We just can’t know at this
moment what it’s going to mean, but it certainly causes
me to be very worried about the institutions
of government [INAUDIBLE] Constitution. INTERVIEWER: Let me try
what I suspect for you will be a slightly happier note. A number of conservatives,
including University of Chicago Law Professor Will
Baude and Justice Clarence Thomas, have recently
criticized the doctrine of qualified immunity. Do you see anything
coming of this? You know, are there
any other bright spots on the horizon from
your point of view? ERWIN CHEMERINSKY: I see no
indication that the Supreme Court is going to reconsider the
doctrine of qualified immunity, or any of the other doctrines
that we’ve talked about. Will Baude wrote the article you
mentioned, Clarence Thomas has questioned it, but what’s
gone on over the last decade is the Supreme
Court has expanded the protections of
qualified immunity, not suggested narrowing it. I think the bright
spot is the long term. If you look at the course
of American history, there’s been such
tremendous advancement of liberty and equality. Think just in
relatively recent years, how we’ve gone from in 2003,
the first state recognizing a right to marriage equality
for gays and lesbians, to 2015, the Supreme
Court finding such a right under the Constitution. That’s an enormous expansion
of equality and liberty in a very short period of time. And I really believe that
Dr. Martin Luther King, Jr. was right when he said,
“The arc of the moral universe is long, but it bends
toward justice.” So I have optimism
for the long term, even if there’s pessimism
for the short term, especially in some
things we talked about. INTERVIEWER: We have time for
just a handful of questions. Yes? AUDIENCE: [INAUDIBLE],,
it seems like you take a decent
amount of exception to the idea of sovereign
immunity for state and federal governments. Do you think that the doctrine
of sovereignty applied to tribal governments
should also be held to the same standard? ERWIN CHEMERINSKY: I know much
less about Native American law than I do about the liability
of the United States and state governments. And yet, my position is
that sovereign immunity is inconsistent
with accountability. And so I would say that when it
comes to an absolute principle like sovereign immunity,
whether it’s the United States government or state government
or tribal government, I would oppose its existence. I think that there should
be accountability when entities violate these rights. AUDIENCE: Thank you. INTERVIEWER: Yes, in the back? AUDIENCE: Yes, and
so what would be the remedy for
prosecutorial misconduct if you can’t just
sue a prosecutor? ERWIN CHEMERINSKY:
The prosecutor can be administratively
disciplined, fired. The prosecutor or police
officer who has perjured might be criminally
prosecuted, but we know from experience it’s very
difficult to get convictions in such cases. But for the victim who
suffered, there isn’t a remedy. If a prosecutor knowingly
uses perjured testimony and convicts an innocent person,
there is no ability to sue. You can’t sue the
prosecutor who did it. You can’t sue, in
all likelihood, the local government that
employed the prosecutor, because you’d have to prove
that the local government had a policy responsible. And if the prosecutor
is an arm of the state, the state has
sovereign immunity. So here, the effect
of immunity is, to me, that injured people
don’t get compensated, and also if there’s
no liability, you don’t have the
deterrent function that comes from when
entities are held liable. INTERVIEWER: [INAUDIBLE] AUDIENCE: How does your
critique of the Supreme Court effect your ability when
you represent clients in front of the Supreme Court? ERWIN CHEMERINSKY: I
don’t think the Supreme Court pays much attention
to what I have to say. I’ll give an exception to that
that took me by total surprise. In March 2014, I wrote
an op-ed in the LA Times saying that Justice Ruth Bader
Ginsburg should step down this summer. I said it’s quite possible
the Republicans are going to take the
Senate in November 2014, which we know they did. There was no way
to know what was going to happen in
November 2016 as to who’s going to win the presidency. And I said the one
way she can ensure that somebody with
her values and views takes her place is to
step down this summer. President Obama has
a Democratic Senate you can get anyone
you want to from. To my incredible
surprise, Justice Ginsburg gave many interviews which
said, “some such as Erwin Chemerinsky [INAUDIBLE].” [INAUDIBLE] what I had to say. If you’ve seen the wonderful
movie RBG, at one point she says that there were some
who said I should step down. And I was watching with
my 20-year-old daughter who hit me hard. INTERVIEWER: Yes? We have time for
one last question. AUDIENCE: You mentioned the
Holder case a little while ago. In the 1960s, the
Voting Rights Act was passed, signed by
President Lyndon Johnson. Section 4 and 5
prohibited any state which had a history
of discrimination in voting, discrimination
against minorities. The Supreme Court said we
don’t need this anymore because we now know all
discrimination of this type is gone. And they said so the
requirement of pre-clearance before any state made a
change was unconstitutional and would not be
enforced any longer. Within two years
from that decision, the nine states which were
subject to Section 4 and 5 have all passed laws making
it more difficult to vote. And we see what’s
going on in Georgia now and in North Dakota. Do you see any chance that the
court might, if a case came up, might say well, our
expectations were proved wrong. Discrimination still
exists, and so we’re going to reinstate Section 4 and 5? ERWIN CHEMERINSKY: One of the
myths of the last half century is that liberals favor judicial
activism and conservatives favor judicial restraint. In the case that you
point to, this decision called Shelby County
v. Holder, and it involves Sections 4 and 5
of the Voting Rights Act that require that jurisdictions
with a history of race discrimination in voting
get pre-clearance. It was passed by the Senate
virtually unanimously. There were only 33 no
votes in the House, or rather the extension of it. President George
W. Bush signed it. It was originally
passed in 1965, and then re-enacted and
re-enacted, most recently in 2006. The Supreme Court,
in a 5 to 4 decision, declared these provisions
to the Voting Rights Act unconstitutional. Chief Justice Roberts
wrote for the court, and he was joined by Justice
Scalia, Kennedy, Thomas, and Alito. Chief Justice Roberts
said the problem with this is this violates the principle
of equal state sovereignty under the Constitution. Under this, Congress has to
treat all states the same. And Congress isn’t
treating all of them the same, because it’s
saying that jurisdictions with a history of race
discrimination in voting have to get approval
from the Attorney General before they change
their record systems. I would challenge anyone to find
anything in the Constitution that says that there’s a
principle of equal state sovereignty that Congress has
to treat all states the same. Now I’m not an originalist. I don’t believe the
meaning of the Constitution is determined by what
the framers understood. But if anything is
clear, it’s that those who wrote and ratified the
14th and 15th Amendments didn’t believe that Congress has to
treat all states the same. That’s the same Congress that
passed the Reconstruction Act that created military rule
over the former rebel states. Nonetheless, the Supreme
Court creates this principle and uses it to strike down
a federal statute that was passed first in 1965,
and almost unanimously re-authorized by Congress. It’s hard to think of a clearer
example of judicial activism than that. And as you point out
that the nine states that had to get pre-clearance under
Section 4 of the Voting Rights Act immediately responded by
adapting more restrictive laws with regard to voting, were
[INAUDIBLE] that otherwise would never have been approved. And so I think not
only is that case important for a
political system, but I think it also belies
the idea that liberals are the activists
and conservatives are engaged in restraint. INTERVIEWER: Please join me
in thanking Dean Chemerinsky. [APPLAUSE] PRESENTER: Please join all of
us outside for a reception. Thank you all for being here.

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