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.
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.
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.
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
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
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!
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.