Dream Team Assembled at UCI Law School Squeezes Boring Right Out of 2010-11 U.S. Supreme Court Term

For the UC Irvine School of Law's first-ever Supreme Court Review Wednesday, the assembled panel was saddled with a reportedly "boring" 2010-2011 term.

Fortunately, the legal all-stars who enlightened about 170 lunching students, lawyers and professors on campus (and an equal number watching the event streamed live) managed to squeeze the boring right out of the last term.

Indeed, Erwin Chemerinsky, the esteemed dean of the 23-month-old law school, immediately discounted the boring rap, arguing that the U.S. Supreme Court's decisions in '10-'11 reflected a disturbing trend of closing the nation's courthouse doors to those who believe they have been wronged.

And his frequent sparring partner John Eastman, a Chapman University constitutional law expert and that law school's former dean, believe some recent rulings set markers for upcoming debates on such fireworks-producing cases as Obamacare, immigration and same-sex marriage.

Supreme dream team (from left): Chemerinsky, Eastman, Savage, Lithwick, Levenson and Hasen.
Supreme dream team (from left): Chemerinsky, Eastman, Savage, Lithwick, Levenson and Hasen.

Sitting alongside the battling deans were: David Savage, who covers the Supremes for the Los Angeles Times; Dahlia Lithwick, who does the same for Slate; Laurie Levenson, a Loyola Law School professor and one of the media's go-to pundits on criminal law; and moderator Rick Hasen, an election law expert who was Levenson's colleague in LA until recently being hired away by UC Irvine.

Cases Chemerinsky chose to highlight included AT&T Mobility v. Concepcion, where the court shielded the telecommunications giant from a consumer lawsuit because cell phone contracts contain a clause stating disputes will be settled via arbitration (or "procedural simplicity," as Justice Antonin Scalia wrote in the majority opinion), and PLIVA, Inc. v. Mensing, which found makers of generic drugs cannot be sued for failure to warn about adverse effects even if the makers of non-generics can be sued.

Eastman, who noted he has been debating Chemerinsky weekly on the radio for 11 years and can count only four times when they have agreed, felt he may have found a fifth with Arizona Christian School Tuition Organization v. Winn. He disagreed with the high court ruling that taxpayers have no standing under the Establishment Clause of the First Amendment to challenge a state law program providing tax credits for tuition for parochial schools. That put Eastman, a former law clerk for Justice Clarence Thomas, at odds with Scalia. Eastman was otherwise the lone panelist generally defending the majority opinions and dissents of his fellow conservative originalists Thomas and Scalia.

Eastman a case that might indicate how justices will rule this term on immigration was Chamber of Commerce v. Whiting, which found no violation of federal law in provisions of Arizona's controversial immigration law that suspend and revoke the business licenses of companies that hire undocumented workers and that force businesses to verify the immigration status of employees through a specific Internet system (a.k.a. E-Verify). Eastman said Bond v. United States--where the majority justices found an individual does not have standing to raise a claim that federal law violates the Tenth Amendment--could be a marker for a national healthcare ruling.

Levenson found Davis v. United States as another example of the right-leaning Supreme Court eroding the rights of individuals to fair arrests and prosecutions as long as cops made a "good-faith effort" to follow the Fourth Amendment, especially if they didn't. She also mentioned cases where Miranda rights were affirmed but habeas corpus, due process and search warrants continue to take Supreme hits.

Savage spoke passionately about the disturbing conclusion reached in Connick v. Thompson. John Thompson was convicted of murder and armed robbery he did not commit in Louisiana in 1985, but just before his scheduled execution in 1999, his private investigators learned that prosecutors had failed to turn over blood evidence that would have cleared him. In 1963, the Supreme Court had ruled in Brady v. Maryland that prosecutors must turn over to the defense any evidence that would tend to prove a defendant's innocence, that failure to do so violates the defendant's constitutional rights. Four prosecutors for 20 years kept secret the exculpatory evidence, but after Thompson's convictions were overturned the law prevented him from suing them. So, Thompson sued their boss, former district attorney for Orleans Parish Harry Connick Sr., for failing to train his prosecutors about their legal obligation to turn over evidence to the defense, citing a legal theory known as deliberate indifference. A jury awarded Thompson $14 million, and that was upheld by the appeals court. This year, the U.S. Supreme Court overturned it, saying a local government cannot be held liable for deliberate indifference in a single instance where its officers failed to comply with Brady v. Maryland.

Savage accused the Supreme Court of deliberate indifference.

Lithwick was the most entertaining and opinionated panelist, pointing out the infusion of energy produced by three female justices who write impressive opinions and dissents and have no fear mixing it up with the boys. Lithwick also took an Eastman-cringe-inducing potshot at Thomas' dissent in one of most high-profile cases the court dealt with, Schwarzenegger v. Entertainment Merchants Assn., which did mortal combat to California's ban on the sales or rentals of violent video games to kids. Lithwick found Thomas' writing, which argued children have no First Amendment rights, rambling and "bizarre."

During a later rebuttal, Eastman urged a re-read of the Schwarzenegger dissent, arguing that for the first time in history someone reconciled the philosophical differences of seventeenth century English philosopher John Locke and eighteenth century French philosopher Jean-Jacques Rousseau. Now that's originalist!

To the agreement of everyone, Eastman included, Lithwick singled out Anthony Kennedy as the most powerful justice on the court. He sided with the majority 94 percent of the time in the last term, and he is touted as the swing vote on gay marriage and healthcare this term. "This is very much Anthony Kennedy's bench," Lithwick said to the nods of the other panelists.

Meanwhile, if there is any glimmer of hope, the journalist found it in free speech being alive and well with this court. Cases that most spoke to this were Schwarzenegger and Snyder v. Phelps, where despite the odiousness of the God Hates Fags ministry, its right to picket military funerals was affirmed. But Lithwick also noted the Schwarzenegger case illustrated the larger role technology is entering the low-tech high court.

While the panelists argued with one another about their takes on presented cases, all predicted the court will eventually rule in favor of same-sex marriage and probably healthcare, although Eastman sees an inside chance for an upset. When it comes to televised coverage of these arguments of national importance, it was agreed that's not going to happen with these black robe wearers. Lithwick summed up why that won't happen in two words: "Jon Stewart." No one wants to be made the fool. Savage had set her up earlier by noting the justices do not have high enough regard for one another to trust putting the court on the boob tube.

See, that was exciting! No wonder Chemerinsky has high hopes this will be the first of many more Supreme Court Reviews at UCI. Considering what will likely be before the justices this term, place your bets now on next year's second annual gathering being boredom-free.


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