OpEds

“It is hard to imagine a worse decision than the Supreme Court’s ruling on Thursday allowing Texas to use its new congressional maps designed to elect five more Republicans to the House of Representatives,” writes Dean Erwin Chemerinksy.

“It was not that long ago that the unitary executive theory was emphatically rejected in Morrison v. Olson in an opinion by Rehnquist, himself a conservative,” writes Dean Erwin Chemerinksy. “The court’s current majority seems ready to undo Rehnquist’s work on that front, and to embrace Scalia’s dissent in Morrison calling for a more powerful presidency.”

Dean Erwin Chemerinsky weighs in on two SCOTUS cases that are likely to substantially change the law as to when the president can fire those in the executive branch of government. 

“The fate of Texas’ and perhaps California’s recent redistricting — and thus the political composition of the House of Representatives after the 2026 midterm elections — turns on a principle of law that’s never made much sense before and makes absolutely no sense now,” writes Dean Erwin Chemerinsky.

“Truthful speech is protected by the First Amendment and should not be the basis for accusing people of sedition, let alone threatening the death penalty,” writes Dean Erwin Chemerinsky.

“Like the Trojan princess whose accurate prophesies were doomed to be disbelieved, dire warnings of the justices about American democracy are going unheeded,” write Dean Erwin Chemerinksy and Lisa Tucker, professor of law at Drexel University.

“The Supreme Court’s ruling allowing the Trump administration to require that passports reflect a person’s sex at birth is both mean-spirited and wrong as a matter of law,” writes Dean Erwin Chemerinsky.

“We are unlikely to ever know whether one or more of the amicus briefs changed any justices’ minds,” writes Dean Erwin Chemerinksy. “But we also never can know in advance whether a merits brief or an oral argument made a difference. All lawyers can do is make the best arguments they can and hope they persuade the court.”

“The two tariff cases before the Supreme Court this week should thus be easy ones, including for the conservative justices,” writes Dean Erwin Chemerinsky. “But will they follow the law and their traditional approaches to it, or are they just a rubber stamp for Team Trump?”

“Many states, including California, consider the race of voters in drawing their political maps,” write David Carrillo, executive director and Stephen M. Duvernay, a senior research fellow at Berkeley Law’s California Constitution Center. “They do this to prevent minority votes from being dispersed and diluted, as Section 2 of the federal Voting Rights Act forbids. In Louisiana v. Callais, the high court will decide whether a state’s intentional consideration of race to create these majority-minority voting districts violates the Constitution’s Equal Protection Clause.”

“In reading the briefs, there is a sense that the challengers of the tariffs are making arguments that usually appeal to the conservative justices: follow the plain text of the statute, eschew allowing broad delegations of congressional power, restrict the ability of the executive branch to rule on major questions without clear guidance from Congress,” writes Dean Erwin Chemerinksy.

“It always should be troubling for the court to decide empirical questions without actual evidence,” writes Dean Erwin Chemerinsky. “But it should be especially disturbing for the court to strike down or narrow a vital civil rights statute based on a group of justices’ intuition that race discrimination in voting is largely a thing of the past.”

“If court orders can be defied, then the president can violate the Constitution and any law with impunity knowing that there are unlikely to be any meaningful consequences,” writes Dean Erwin Chemerinsky. “That means the president could then do anything — including locking up critics — knowing that the courts are powerless to stop it.”

“Beyond the unconstitutional aspects of the compact, there is its odious demand to intrude on the autonomy of these schools,” writes Dean Erwin Chemerinsky. “Every aspect of it seeks to dictate decisions that have traditionally been left to each university — a degree of control over higher education that is characteristic of authoritarian countries.”

“In all my decades spent closely following Supreme Court decisions, I’ve never before felt one term had the potential to be so momentous in deciding the future of American democracy,” writes Dean Erwin Chemerinsky.

“AB 288 protects fundamental constitutional rights of Californians at a time when the federal government is failing,” writes Professor Catherine Fisk and Dean Erwin Chemerinsky. “It is a commonsense measure that builds on the established practice enabling unions and employers to come together under a stable and predictable set of rules to bargain collectively.”

“It is time to be very worried about freedom of expression in the United States,” writes Dean Erwin Chemerinsky. “History shows that it can be so easily lost. No democracy can exist without it.”

“The Supreme Court has greatly reduced the power of the federal courts,” writes Dean Erwin Chemerinsky. “And it has done so at a time when the federal judiciary may be our only guardrail to protect the Constitution and democracy.”

“The Supreme Court’s growing reliance on its “shadow docket” to issue major, often precedent-shaping rulings without full briefing, oral argument, or explanation undermines fundamental principles of judicial process and transparency,” writes Dean Erwin Chemerinsky.

Dean Erwin Chemerinsky weighs in on the Supreme Court’s recent ruling upholding raids by ICE agents in Los Angeles and other cities, targeting people based on their skin color and accents.

“Besides its economic significance, that is what makes the tariffs case so fascinating in the Supreme Court,” writes Dean Erwin Chemerinsky. “Will the conservative justices adhere to what they have said and held recently, or will they just rubber stamp whatever Trump does?”

“Under federal law, the president can use troops in domestic situations only in very limited circumstances, such as by invoking the Insurrection Act of 1807,” writes Dean Erwin Chemerinsky. “Trump has not done so, and the circumstances allowing for that law to be used have not been met.”

“There is much that is disturbing in what the court is doing,” writes Dean Erwin Chemerinsky. “The process of full briefing and of oral argument is based on the premise that advocacy matters. This is absent in shadow docket cases.”

“Being on a UC campus, it feels clear to me that the faculty and students strongly oppose a settlement,” writes Dean Erwin Chemerinksy. “They want university officials and the regents to challenge the illegal actions of the Trump administration.” 

“People should understand — and be alarmed — that once these data silos come down, they won’t go back up,” writes Professor Catherine Crump. “The power to track, target and punish will exist for every future administration.”

Dean Erwin Chemerinsky discusses two matters pending on the Supreme Court’s docket that portend potential significant changes in the law of voting rights and of civil rights more generally.

“President Donald Trump’s cutoff of funds to universities, including UCLA, is blatantly illegal and unconstitutional,” writes Dean Erwin Chemerinsky. “It is about inflicting great harm on universities, as evidenced by Trump’s statement that he would settle with UCLA for $1 billion.”

“There is a way forward that doesn’t undermine either the will of the voters or sacrifice electoral integrity: play by the rules and win at the ballot box,” write the California Constitution Center’s executive director David A. Carrillo and senior research fellow Stephen M. Duvernay. “Tit-for-tat gerrymandering isn’t a shortcut to victory.”

“If one believes that briefing, arguing, and deliberating matters are essential to a system of law – and I certainly do – we should be deeply troubled by their absence when the court is issuing major rulings without them,” writes Dean Erwin Chemerinksy.

“Although the ultimate outcome in the courts is uncertain, the California Legislature should pass the bill,” writes Dean Erwin Chemerinksy. “If nothing else, the law would be a forceful declaration by this state’s elected representatives that the practice of ICE agents operating in masks and without identification is wrong and must stop.”

“These cases pose profound issues with regard to separation of powers and the authority of the president,” write Dean Erwin Chemerinsky. “They often enormously affect real people’s lives. The justices owe it to all involved and to the country to explain their thinking. “Because we said so” is just unacceptable.”

“It is terrible that our government is doing this, but it is unconscionable that the Supreme Court stepped in to make sure it could happen,” writes Dean Erwin Chemerinsky. “The court exists to ensure that the Constitution and the laws of the United States are enforced, not to be a rubber stamp for the president.”

“The Supreme Court’s ruling in Trump v. CASA not only strips federal courts of the vital power to issue nationwide injunctions against unlawful presidential actions, but does so by clinging to a narrow, historically misguided view of 18th-century English law,” writes Dean Erwin Chemerinsky.

“From Gaza and Israel to Russia and Ukraine, any meaningful ceasefire must confront state sponsored hacking, internet shutdowns, and an inflammatory barrage of digital disinformation — in addition to the traditional elements of war,” write Betsy Popkin, executive director of UC Berkeley Law’s Human Rights Center and senior research fellow Brett Solomon. “Without addressing these digitally enabled operations, peace deals risk falling short.” 

Dean Erwin Chemerinsky weighs in on the Supreme Court’s October 2024 term.

“At a time when our country is so divided, I still optimistically hope that the court might play a moderating — and even unifying — role,” writes Dean Erwin Chemerinsky. “That so clearly didn’t happen this year, as the conservative majority repeatedly chose sides.”

“In my conversations with attorneys across every sector of the profession, from BigLaw partners to solo practitioners, government counsel to public interest advocates, there’s a common thread: Stay grounded and effective amid the chaos,” writes Angeli Patel, executive director, Berkeley Center for Law and Business.

“The Supreme Court on Friday dealt a grievous blow to separation of powers by holding that federal courts cannot issue nationwide injunctions to halt unconstitutional actions by the president and the federal government,” writes Dean Erwin Chemerinsky.

“It is stunning that the Ninth Circuit paid no attention to American history and how rare it is for a president to federalize a state’s national guard,” writes Dean Erwin Chemerinsky.

“The Supreme Court’s decision upholding a Tennessee ban on gender affirming care for transgender youth is a tragic abdication of the judiciary’s responsibility to protect minorities,” writes Dean Erwin Chemerinsky.

“No president in history has asserted the ability to control federal spending as Trump has done,” writes Dean Erwin Chemerinsky. “The federal courts must stop this if we are to remain a democracy under the Constitution.”

“In fighting to uphold the law, we also must not lose sight that we are fighting for the human beings who are protected by it,” writes Dean Erwin Chemerinsky.

“The use of the military to quell protests is something associated with dictators in foreign countries, and as of Saturday night, with a president of the United States.,” writes Dean Erwin Chemerinsky.

“No modern presidential administration has undertaken such an effort to staff the entire government with political loyalists,” write Dean Erwin Chemerinsky and Professor Catherine Fisk. “It is plainly inconsistent with good government, with federal law and with the Constitution.”

“Big Law’s quick court wins don’t erase Trump’s damage to the profession, underscoring that law firms must fight.” – Opinion by UC Berkeley Law Dean Erwin Chemerinsky, UC Law SF Dean David Faigman, and retired Judge Nancy Gertner of Harvard Law.

“After weeks of wrangling, the House passed the bill last week by the thinnest of margins. The bill’s fate, though, ultimately depends on an obscure Senate rule: the Byrd rule,” writes Professor Jonathan Gould.

“A crucial tool for police reform will be lost.,” writes Dean Erwin Chemerinsky. “An increase in police violation of rights and police violence, especially against individuals of color, seems inevitable.”

“What the Trump administration is doing is a direct assault on the independence of universities and on academic freedom,” writes Dean Erwin Chemerinsky.

“The federal courts are a crucial protector of the guardrails of our democracy. Now is not the time to greatly weaken their power to enforce the Constitution,” writes Dean Erwin Chemerinsky.

“At a time when President Trump is claiming unprecedented executive powers, the Supreme Court may be poised to eliminate a significant check on presidential authority,” writes Dean Erwin Chemerinsky.