 Greetings and welcome to this first campus conversation of this academic year. I'm Dan Mogulov from the campus office of communications and public affairs. Today is part of our celebration of Constitution Day. I'm honored to welcome Erwin Chemerinsky, Dean of Berkeley Law, and one of the nation's leading constitutional scholars who has himself argued cases before the Supreme Court. Suffice to say, I could fill the next half hour with Erwin's resume and accomplishments, but in true Erwin fashion, he insisted that I cut to the chase and keep it short. In the course of our conversation today, we're gonna be looking back at the momentous decisions handed down by the Supreme Court in its last term. And then we'll look ahead to the consequential cases on this year's docket. And finally, we're gonna discuss with the changed composition and ideological balance of the court might mean for public policy, politics, and the court's own standing and stature in our country. As always, we welcome your questions throughout the conversation. You can just post them to our Facebook live site and we'll do our best to get to them as we proceed. Erwin, thanks so much for joining us today. Thank you so much for having me. This is such a pleasure. Yeah, so before we dive in, first of all, just situate yourself ideologically so people can contextualize some of the analysis and the opinions you'll be sharing the next hours. Sure. When I think of myself on an ideological spectrum, I describe myself as a liberal Democrat. In terms of the Supreme Court, I think the justices who I'm most usually in agreement with, would you say Ruth Bader Ginsburg or William Brennan on the current court, Sonja Sotomayor? Got it. I mean, and you wrote a number of vop ads after each of the momentous decisions that were in the Los Angeles Times. And they were quite scathing. I mean, you seem to be a really adamant critic of the current court and its decisions, particularly in the last term, right? Last term was one of the most momentous in American history. Vic, I would say the week between June 23rd and June 30th was one of the most momentous weeks in American history. And it's not simply that the Supreme Court changed the law, it's that it changed the law dramatically and moved it very far in a rightward direction. I think both liberals and conservatives would agree with that characterization, overruling Roe versus Wade, dramatically expanding gun rights, limiting the power of the EPA to regulate greenhouse gas emissions. All of these were enormously important for our society and all were dramatic right direction changes. And to what degree does this shift these momentous decisions? To what degree can they be connected to Donald Trump's presidency? They're all connected to Donald Trump's presidency. And again, this is non-ideological. Both liberals and conservatives would agree with this. Imagine that Hillary Clinton had won in 2016 rather than Donald Trump. And imagine she had picked the justice to replace Anton Scalia, Anthony Kennedy and Ruth Bader Ginsburg. No one thinks that Roe versus Wade would have been overruled. It would be secure for decades to come. No one thinks that the Supreme Court would have expanded gun rights. No one would think that the Supreme Court so aggressively rejected free exercise of religion. These decisions are very much a product of who's on the court and that Trump got to pick three justices in four years. Is that an extraordinary number? It is an extraordinary number. Let me put this in some context. Jimmy Carter picked no justices in his four years as president. Trump picked three or I can put the statistic more starkly. If you look at the last three Democratic presidents before now, Carter, Clinton, Obama, they served to combine 20 years in the White House. In those 20 years, they picked four justices. Trump got to pick three justices in his four years. Wow. I'm wondering, and we're gonna jump into the cases in a second, but just to set the stage and the context here, has any of this led you to think about the need for dramatic changes in the terms of Supreme Court justices, how they're chosen, of how the filibuster is being used? I mean, are you starting to have some doubts or some new thoughts about the way we do business when it comes to the nation's highest court? Yes, though I wouldn't say starting. I wrote a book that was published in 2014 titled The Case Against the Supreme Court. It was long before any of the decisions we're discussing. And in it, I argued for 18-year non-renewable term limits for Supreme Court justices. I said, some of it is just the thankfully life expectancy. There's a lot longer today than it was in 1787. It was then 38 years. Clarence Thomas was 43 when he was confirmed for the court in 1991. If he remains on the court until he's 90, which is when John Paul Stevens retired, Thomas will be a justice for 47 years. When I put it another way, Amy Coney Barrett was 48 years old when she was confirmed for the court two years ago. If she stays on the court until she's 87, the age was just as Ginsburg died, Barrett will be a justice until your 2059. That's just too much power in one person's hands for too long a period of time. Too much depends on the accident of history, is when vacancies occur. Richard Nixon got to pick four justices in his first year as president. So I said, Jimmy Carter got none in his fourth year as president. So that caused me to believe in 18-year non-renewable terms for Supreme Court justices. I just wanna, before we move on, wanna welcome people who may be joining us late. We're talking with Berkeley law dean Irwin Chemerinsky as part of our celebration of Constitution Day. We're gonna be talking about the Supreme Court's momentous last term, the term ahead. Your questions are welcome. They can be posted to the Facebook live site. One last question before we kind of jump in and look at some of the key cases. What's the through line here? I've seen in coverage, I've seen in some of your own writings, an engagement of this notion of originalism that this is something new, not something new ideologically of course, but in terms of the role it played and how it backed ideologically or at least the justices claim that it did, many of these decisions. For those of us who are sort of don't have your level of expertise and familiarity, set the stage a little bit in terms of what originalism is and why it's important to understand that in the context of these decisions. Original is the view that the meaning of a constitutional provision is fixed when it's adopted and can change only by a constitutional amendment. So article one of the constitution for an originalist means the same thing today is was adopted in 1787. Bill of Rights provisions like the First Amendment or the Second Amendment mean the exact same thing today as when they were adopted in 1791. The 14th Amendment means the same thing today as adopted in 1868. Originalism developed in the 1970s is a theory to criticize the liberal war on court decisions. Robert Bork was nominated for the Supreme Court in 1987. He was rejected by the largest margin of any nominee in history. And it was because his originalist views were seen as so dangerous. Bork said, for example, that equal protection should not apply to protect women from discrimination because that wasn't the original intent of the 14th Amendment. He said there's no protection of privacy and autonomy under the constitution like for contraception or abortion because that wasn't part of the original meaning of the constitution. He thought that the First Amendment protection of speech should only be about political expression. It shouldn't include, say, entertainment or sexual material because that wasn't part of the original meaning of the First Amendment. And that was seen as such an extreme approach to the constitution. But over time, conservatives succeeded in bringing originalism more into the mainstream. And now we have three justices on the court who describe themselves as originalists, Thomas, Gorsuch and Barrett. And three others were often very sympathetic to originalism. And this would be Robert's Alito in Kavanaugh. And last term, in the major case we're talking about, again and again, the conservatives invoked originalism in limiting the meaning of the constitution. So in other words, they're trying to discern or they claim they're discerning or they believe that they're discerning. What was intended some 200 X years ago and that those mores and norms that informed the constitution and the formation of the constitution at that time should be applied today in 2022? That's exactly what originalists would say. Now, apart from the difficulty of figuring out what did people intend over 200 years ago? It's also to me, absurd to think we should be bound by that. Let me give you examples. Most of us regard Brown for sport of education is the epitome of what the Supreme Court should be doing. It declared unconstitutional laws in every Southern state, some border states that required segregation of the races in schools. Brown can't be justified from an originalist perspective. The same Congress that ratified the 14th amendment also voted to segregate the District of Columbia public schools. Or think of Loving versus Virginia, the 1967 Supreme Court case that declared unconstitutional state laws that prohibited interracial marriage. Most every state had such laws when the 14th one was adopted. California had such a law till the 1940s. In 1967, 16 states still had such laws. Loving was wrong from an originalist perspective. Or Griswold versus Connecticut, the right to purchase and use contraceptives. And you can't justify that from an originalist perspective. I think it makes no sense to say that the Constitution today means just that, which was thought for an agrarian slave society in 1787 or 1791. Yeah, we're going to come back to this. And I think it's going to become an even richer conversation once we kind of walk through these cases. So let's jump into that and we'll start with the one which I think far and away received the most attention and is having what appear to be some pretty dramatic political repercussions as well, repercussions on women's lives, on the life of the country. And that's the abortion case. Dobbs, the overturning of Roe v. Wade. Walk us through what happened there and what your sense is of what it means. In 1973 in Roe versus Wade, the Supreme Court held that state laws are unconstitutional if they prohibit abortions prior to viability. In 1992 in Planned Parenthood versus Casey, the Supreme Court said it was reaffirming the essential holding of Roe. States cannot prohibit abortions prior to viability. Viability according to science and medicine is about the 23rd or 24th week of pregnancy. One thing that's important, especially since you mentioned ideology and politics, both Roe and Casey were bipartisan decisions. The majority opinion in Roe was written by Justice Harry Blackman, would have appointed the court by Republican president Richard Nixon. The majority included Chief Justice Warren Burger and Justice Louis Powell, would have appointed by President Nixon. The dissent was Justice Byron White, would have appointed by President Kennedy and Justice William Wrenn, would have appointed President Nixon. Even more dramatic, when the Supreme Court reaffirmed Roe in 1992, it was a five to four decision. All five justices in the majority who reaffirmed Roe had been appointed by Republican presidents. Justice Blackman by President Nixon, Justice Stevens by President Ford, Justice O'Connor and Kennedy by President Reagan, Justice Souter by the first President Bush. Wait, I can just interrupt. Are you saying all the dissenters were appointed by Democratic presidents? No, of the four dissenters in Casey, one was appointed by a Democratic president, Byron White, and the other three were appointed by Republican presidents. So you're saying that... Sorry, go ahead. At that moment in time, eight of the nine justices were appointed by Republican presidents. Five of whom voted to reaffirm Roe versus Wade. Wow, okay, amazing. In Dove's, what was at issue was a Mississippi law that prohibited abortions after the 15th week of pregnancy. That's unconstitutional under Roe and Casey. The federal district court and the federal court of appeals struck the law down. The Supreme Court, though, reversed. Justice Alito wrote for a five-person majority. Alito was joined by justices, Thomas Gorsuch Kavanon Barrett. He asked me earlier the effect of the Trump appointees. Three of the five in the majority were appointed by President Trump. Justice Alito said, Roe versus Wade was quote, egregiously wrong and quote, exceedingly poorly reasoned. He said, a right should be protected by the constitution, only if it's in the text or it's part of its original meaning or there's a long unbroken tradition. He said, Roe doesn't fit under any of those criteria. He said, the issue of abortion is left to the political process. States can prohibit abortion if they want. They can allow abortion if they want, but government regulation of abortion will be allowed so long as it's reasonable. So, you know, I'm just curious. They in effect have thrown the issue of abortion back to the people, back to legislators, back to the states. What's wrong with that? We don't leave fundamental rights to the political process. For a century, the Supreme Court has said under the Liberty of the Due Process Clause, key aspects of autonomy are protected from the political process. The right to marry, the right to procreate, the right to custody one's children, the right of parents control the upbringing of their children, the right to purchase and use contraceptives, the right of competent adults to refuse medical care, the right of adults to engage in private, same-sex sexual activity. The right to abortion is part of all of those rights protected under privacy. The Supreme Court in Rao, I think, got it right. Privacy is protected as a fundamental right under the Liberty of the Process Clause. Laws that prohibit abortion infringe a woman's right to privacy. We shouldn't leave fundamental rights to the political process, not here or in any area. And just to push back, to be the devil's advocate, like much else that we're talking about, everything is subject to interpretation. But the word privacy doesn't appear in the Constitution, people would say. And that was a right that was found, discovered, invented by those justices seeking to bend to contemporary norms. Isn't there a problem with that? Not at all. The word liberty is mentioned in the Constitution. It appears in the Due Process Clause, the Fifth Amendment, the Due Process Clause, the 14th Amendment. And the Supreme Court has protected fundamental aspects of liberty for over a century, even though they're not mentioned in the Constitution. In the 1920s, there was a case coming out of Oregon that involved a law that prohibited parochial school education. And the Supreme Court declared it unconstitutional, saying under the Liberty of the Due Process Clause, parents have a right to control the upbringing of their children. I don't think anyone, liberal or conservative, questions that decision. Or take a case I've already mentioned, Griswold v. Connecticut. Connecticut had a law that prohibited the sale, distribution, and use of contraceptives. And essentially what the Supreme Court said is that under the Liberty of the Due Process Clause, it's sort of every person to decide whether to bear a baguette, a child. The Supreme Court has never limited the Constitution to just the rights that are enumerated, take the right to marry, which the Supreme Court has declared is a fundamental right, even though it's not mentioned. And it's not just with regard to privacy. Freedom of association isn't mentioned in the Constitution, but the Supreme Court has said it too is a fundamental right. Is there any argument from the other side that gives you pause? Because your wording when I read your op-ed was incredibly strong. I mean, you've accused the justices appointed by Trump as lying to Congress in terms of regarding their respect for precedent and whether Roe was already settled law. Is there any legitimate argument on the other side in terms of those who may not have political motives necessarily, but a judicial philosophy that makes sense? One could develop a judicial philosophy of leave all of the major issues to the political process. One could say that Marbury versus Madison was wrong in 1803 in creating the power of judicial review. Why should we have unelected judges in a democracy being able to strike down what elected legislators can do? But I think it's important to recognize that Marbury versus Madison in 1803 said that there's the power of judicial review. Roe versus Wade was in 1973. For 49 years, the law has been that women have the right to abortion. Dan, I mentioned earlier the political party of the justices when the majority in Roe and in Casey, at that time it wasn't controversial to have the court protect rights like this. The only thing that's changed is the composition of the court and how abortion has become such defining political issue. So people have talked a lot about the precedent this decision sent in a sort of a meta sense that it took away a right. And that that was unprecedented. Do you think that's overstated? Concern about that is overstated? Or do you think that the door has been kicked open now to other decisions that could begin to restrict our liberty and freedom? I think it's a really important point. Part of what makes Dobbs so startling is one of the rare times in American history where the Supreme Court has ever taken away a right. If you look at the sweep of American history it's towards tremendous expansion of freedom and equality. You don't often see the Supreme Court taking away a right that people have come to expect an alliance. Every woman of reproductive age in the United States has spent her life with the right to abortion being there. Should we be afraid as to other rights? Well, I mentioned that Justice Alito said that a right is protected only if it's in the text, part of the original meaning or a long unbroken tradition. Justice Thomas wrote a concurring opinion in Dobbs in which he said, now we should overrule Griswold versus Connecticut that found the right to purchase and use contraceptives. Lawrence versus Texas that said that the state can not criminally punish private consensual adult same-sex sexual activity. And Obergefell versus Hodges which found a right to marriage equality for gays and lesbians. Now, Justice Alito in the majority opinion says we're not endangering those rights. They don't involve quote potential life but it's hard to be sanguine. Look at the criteria for rights that he articulated. None of those rights meet the criteria and Justice Alito himself as the Chief Justice Roberts and Justice Thomas vehemently dissented when the Supreme Court found a right to marry for gays and lesbians seven years ago. So now in the absence of any national legislation regarding abortion, this has been thrown back to the States. And I noticed in one of your writings, you talked about the fact that the court most very importantly gave guidance to lower courts regarding the standards they should use and evaluating any future regulation something called rational basis review. Help us understand why we should care about that and what that's going to mean to the daily lives of particularly women but also everyone in this country. Since 1937, the Supreme Court has said that it's going to use a different approach depending on the right involved or the kind of discrimination involved. The court says there are some times when we should be really suspicious of the government if it's discriminating based on race, if it's infringing a fundamental right and the judiciary then shouldn't defer to the legislative process. And the court uses what's called strict scrutiny the government action has to be necessary to achieve a compelling purpose. At the opposite end of the spectrum is the rational basis test. This is the court saying basically we leave it to the political process. And so if a 15 year old wants a driver's license and wants to sue and say this is age discrimination that I've got to be 16 it's just going to be rational basis for you and the government's going to win. Under the rational basis test a government action that's held if it is rationally related to a legitimate government purpose or to make this more concrete I can count on less than the fingers of one hand the cases in which the Supreme court has ever found a law unconstitutional under rational basis test. So now let me get to your latter question which I think is so important. What's this going to mean for women in the United States? It's expected that over half the states will pivot all or virtually all abortions. Alabama and Oklahoma have laws that pivot abortions in the moment of conception with the only exception being to save the life of the woman. Just last Friday, West Virginia adopted a law that prohibits virtually all abortions but slightly less than half the states like California are going to continue to protect a right to abortion. What does it mean? Well, women in states where abortion is illegal if they have the resources will travel to place like California where abortion is allowed. Before New York became the first state in this country to legalize abortion in the 1960s over 25% of all the abortions in England were performed on American women. It wasn't poor women going to England for abortions. So it's poor women, teenagers who will again face the choice between an unwanted child and an unsafe back alley abortion. And so I think this is the practical effect. One caveat here, we're assuming that this is gonna be left to the states. Congress could pass a law preempting the states. In theory, Congress could pass a law creating a national right to abortion. Such a bill passed the House of Representatives this spring but Republican senators still abustered it so it wasn't gonna get adopted. And just last Tuesday, South Carolina Senator Lindsey Graham introduced a bill that would have Congress prohibit all abortions after the 15th week of pregnancy which would then override California and the law in other states that allows abortion. Well, so we know that the opponents of Roe time and time again, we're trying to find their way back to the Supreme Court to challenge that ruling. Could the opposite happen now? If when the composition of the Supreme Court changes, then the Supreme Court could reverse Dobbs and go back to Roe. Indeed, I believe that there will be a point, probably not in my lifetime, when the Supreme Court will again find a constitutional right to abortion, overrule Dobbs and reinstate Roe. But not anytime soon. Look at the ages of the conservative justices. Clarence Thomas is the oldest at 74. Samuel Lido is 72. John Roberts is 67. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are all still in their fifties. I've long thought one of the best predictors of a long lifespan has been confirmed for a seat on the Supreme Court. So it's easy to imagine these justices being together as a group, another decade or two. Well, that's a pretty pessimistic view then. It suggests that for those who are concerned about a right to an abortion that the next, the battleground really has to be in legislatures and not in the judicial system. And in state courts, until and unless Congress acts, state courts can find rights to abortion under the state constitutions because states can provide more protection of rights than the US Constitution, not less. The California Supreme Court has interpreted the California Constitution as protecting right to abortion. The Alaska Supreme Court has interpreted the Alaska Constitution as protecting right to abortion. So there's gonna be litigation in state courts, but also overall you're right, the issue of abortion for better or worse, depending on your perspective is now being fought out in the political process. And don't those, don't these state level adjudication bringing to future cases regarding abortion to state courts have the possibility of surfacing even with the, this court, the Supreme Court issues that would be of interest and of resonance for the Supreme Court even in its current composition? You know, I read about a fascinating case where there were Orthodox Jews who say, look, our religion says that the life of the woman must always come first. This ruling is interfering with religion, violating the separation of church and state. And I'm thinking, boy, there's something that could find its way back up to the top. I think that the effect of the decision in Dobs is gonna open the door, not just to legislation, but to litigation. I'm gonna give you examples, including the one that you mentioned. Does a state have to have an exception for the life of the woman? And how is that to be determined? Is a state constitutionally required to have an exception for the health of the woman? Can a state prohibit a woman from crossing state lines to get an abortion? Can a state prohibit importation of medication into the state that would induce an abortion? What about a woman whose religious beliefs would require dev an abortion to protect her health or her life? Does denying her dad violate free exercise of religion? Can a state pass a law that outlaws methods of contraception, like the morning after pill and the IUD? Because some believe they take effect after conception. Can a state require that all embryos be implanted when there's in vitro fertilization, which may make the procedure unworkable? All of these are constitutional issues and they're all gonna ultimately have to come back to the Supreme Court. Fascinating. We could talk about this for the rest of the hour, but there were some other cases that were nearly as momentous. Talk about administrative law. Not something that doesn't sound like the sexiest of topics, but here too we were looking at quite a momentous decision. Can you unpack that for us? Sure, the case here was West Virginia versus Environmental Protection Agency. It was decided on June 30th. The Obama administration adopted the Clean Power Plan to reduce greenhouse gas emissions from coal-fired power plants. They're a major source of climate changing greenhouse gas emissions in the United States. The Trump administration rescinded the Clean Power Plan. It adopted its own affordable clean energy plan. It was much more permissive with regard to greenhouse gas emissions. The United States Court of Appeals for the District of Columbia Circuit struck down the Trump action is violating the federal law, the Administrative Procedures Act. West Virginia and a couple of coal companies sought review in the Supreme Court. The Supreme Court in a six to three decision ruled that the EPA lacked the authority to regulate greenhouse gas emissions from coal-fired plants. This is significant in itself. Just as K. Kennedy's scent began by talking about the problem of climate change now it imperils the planet. Chief Justice Roberts said when there's a major question of economic or political significance an administrative agency can act only if there's clear direction from Congress. He said whether there can be regulation of greenhouse gas emissions from power plants is a major question of political economic significance. Therefore, the agency can't act until Congress gives direction. Here's why this matters so much beyond just the environmental context. What's a major question of political economic significance? What's enough guidance from Congress so that it meets the major questions doctrine? This is one of very few cases in all of history where the Supreme Court has ever talked about a major questions doctrine. This is opening the door to an enormous range of challenges to all sorts of government regulations, federal health and safety regulations, business regulations, environmental regulations, with those who don't like the regulations saying major question, therefore the agency action is invalid. And this is a tremendous assault on the power of administrative agencies and if nothing else, it's full employment for lawyers is it's encouraging challenge is the plethora of different agency actions. Isn't there a consistency here in terms of the ideology and the objectives of the conservative movement in terms of its war, its efforts to constrict the administrative state, to constrict the power of the bureaucracy. I mean, at the heart of the conservative movement is mistrust of government and the belief that government represents a threat to our liberty. I always think about the Ronald Reagan line, the scariest words in the English language is I'm from the US government and I'm here to help you. Is this just an extension of that battle to constrain government? And isn't that part and parcel of what it means to be a conservative? Isn't there an irony? We juxtapose this with what we were just talking about. Conservatives say we distrust government power but we're gonna let states regulate abortion. We're gonna let the government regulate women in the most intimate, the most personal aspects of their lives. Strikes me is that it's about the conservatives don't like abortion so they're happy to have the government regulate there. Conservatives don't like environmental regulation so therefore they wanna limit the power of the government there. I don't see a consistent ideology between the two things we've been talking about. So here again, I'm circling back. Sure. Okay, the court found that Congress was not specific enough in terms of the guidance it gave about regulation. What's wrong with going back and making sure that if Congress wants greenhouse gases regulated, it should have said so. Since 1935, not one federal statute has been declared unconstitutional on the ground that Congress gave an access to delegation of legislative power with that Congress didn't get guidance to the agencies. The reality is that Congress needs to give broad discretion to administrative agencies so as to be able to deal with social problems. It's not realistic to say that Congress can prescribe in detail the amount of effluence on power plants with the amount of pollution that goes into the water or the precise standards with regard to what drugs are and aren't approved. They delegate to the FDA to decide what drugs to approve. They delegate to the EPA to regulate under the Clean Area Stationary Sources of Power. It's not realistic in our complex technological world to say that Congress can prescribe detailed standards in every area. You know, we're talking about the six to three conservative majority and the question kind of comes to mind. Are they monolithic or are you being surprised or are you seeing different levels of sophistication or different shades of ideological intent, of honesty? I'm not sure what. How should those of us who are observing the court from a far less educated stance than your own, what should we understand about that block of six justices? Overall last term, they were quite monolithic. In the Dobbs abortion case, Chief Justice Roberts did not join the other five conservatives to overrule Roe, but in the EPA case, the gun case, the religion cases, and many others I can mention, the six three was pretty consistent. Let me give you the statistics. Last year, the Supreme Court decided 60 cases was signed opinions after briefing all arguments. It's many fewer than it used to be. 19 of the 60 were six three decisions. Another nine were five four decisions. Now there are differences. I would say that Roberts and Kavanaugh are of the six, the most likely on occasion to join with the three liberal justices. Thomas, Alito, Gorsuch, and then Barrett are the most conservative of that group. But overall, if you think of an ideological spectrum, the six conservative justices are all fairly far right of center. Roberts maybe less far right, but the other are really ideologically very conservative. And I don't think this is a political comment. I think that conservatives would applaud what I just said and agree. Liberals would decry it, but I think everyone sees where they are in the same way. We're gonna move on to the next two cases involving religion, but my takeaway from what you had to say about the administrative law decision is we should be on standby for sort of a major assault on all sorts of government regulations. It's already begun. The Supreme Court decision that says agencies can't act on major questions without congressional declaration has led just in the last few months to challenge just so many agency actions. And we're gonna have to see how it plays out. The major questions doctrine is quite new. And the content for it is maybe fleshed out by the Supreme Court. Let's move on to religion. Two really big cases that seem to have not even chipped away, but taken a sledgehammer to that wall separating church and state. The first of the cases was Carson versus Macon, came down on Tuesday, June 21st. There are parts of the state of Maine that are too rural to support public school systems. So in those areas, school administrative units provide money to parents to send their children to private school. The money has to be used for secular private schools, but 5,000 children are affected by this in Maine each year. Maine says it's interest is in providing a free secular education for all children in Maine. Maine says, I think it's wrong to text people to support the religion of others. Two families that wanted to use the money to send their children to religious school brought a challenge. The Supreme Court ruled six to three that if the government is going to give money to private secular schools, the government is constitutionally required to give money to religious schools. To see what a dramatic change this is in the law, for decades, the issue was, when may the government give aid to religious schools without it violating the Establishment Clause of the First Amendment? Now it's, when must the government give aid to religious schools or it violates free exercise of religion? The Establishment Clause, as Justice Breyer has said and has said, plays no role in the majority's analysis. It's all about free exercise of religion. There is no notion of a wall separating church and state. The other case that you mentioned is Kennedy versus Bremerton schools that came down on Monday, June 27th. And if I was a high school football coach, Joseph Kennedy in Bremerton, Washington, he had a practice of going onto the 50 yard line after games in kneeling and praying. Sometimes players in his team would join him, sometimes players in the other team would join him. A parent complained. The parents said, my son and our family are atheists. My son feels pressure to participate in the prayer, prefer otherwise he won't get playing time. The school said to the coach, cut it out. The coach briefly did, but then he began going onto the 50 yard line after games and delivering a Christian inspirational message that he called a prayer. Sometimes players in his team would join him, sometimes in the other team, sometimes fans from the stands. The school suspended him and the school also gave him a poor performance evaluation for this. He soon said, this violated his free access religion and his free speech rights. The Supreme Court, six to three reversed the lower courts and ruled in favor of just Kennedy. Justice Gorsuch wrote the opinion for the court and said keeping him from praying in this way did violate his free access religion. It did violate his free speech. The court said, this to the establishment clause we're gonna overrule the decision from 1971 that implemented the wall separating church and state. The court said that unless what the government is doing is inconsistent with the framers intent of the establishment clause, there's no constitutional violation. Justice Sotomayor wrote the opinion for the court. It was a vehement dissent. And she said, the court is reading the establishment clause out of the constitution. For 60 years, the court had said that prayer is not allowed in public schools because there's an evidently coercion on students to participate. Now the court has very much opened the door at least in certain circumstances to prayer being allowed again in public schools. Now this has some particular, I think significance for California, right? Because of the way we fund charter schools. Talk about that a little bit. The prior case Carson versus Macon really does have implications with regard to charter schools. As everyone knows, charter schools are schools paid for by the government but they're run by private entities. California has a law that says charter schools in the state must be secular. But surely there's gonna be challenges by those who wanna have religious charter schools and say denying them funding violates the access religion in light of Carson versus Macon. Wow. You know, there was something else that struck me here. Perhaps because of my day job but I noticed that in the coverage of these decisions about the school prayer, about the coach, the justices couldn't even agree on the facts of the case. They were dealing with separate narratives which seems to be the theme of our national life right now. They couldn't even agree about whether he was alone or coercing, what the heck was that all about? Usually when a case comes to the Supreme Court, the facts are settled and the argument is about the law. I've rarely seen a Supreme Court case where the majority of the dissent disagreed so much as to the facts. Justice Gorsuch in the beginning says, this is about the right of a coach to be in private on his own time. Justice Sotomayor says, this wasn't a prayer in private. She included photographs in her dissent. You don't usually see that in Supreme Court opinions to show the coach had a big crowd of people around him when he was praying. And she said, this wasn't his own time. The football game was over but the football of that was continuing with people in the stands. So it's interesting how differently they characterized what was happening and it certainly supports the different conclusions they come to. What do you make of that? What do you make that our court now seems to be infected by sort of this national disease of competing narratives untethered to reality in fact? There's no neutral perspective on issues like this. You asked me at the beginning for my politics precisely because people should know where I'm coming from. The reality is on the current court now we have six justices appointed by Republican presidents and they're all conservative. And we have three justice appointed by Democratic presidents and they're all liberal. That's new in American history. Until recently we've had liberal justice appointed by Republican presidents. Think of John Paul Stevens or David Su. We've had conservative justice appointed by Democratic presidents. Think of Byron White or Felix Frankfurter. But at this point in time the court is ideologically divided in the same way our society is ideologically divided. Couldn't happen at a worse time, right? I think it couldn't happen at a worse time. I wish we were at a time when we had more moderates on the Supreme Court. I wish we would go back even to the relatively recent past where there were swing justices on the court like a Sandra DeConnor or an Anthony Kennedy. And I think one of the questions is at a time when our society is so politically polarized what will it mean to have the court having come down so clearly on one side and so far to the right on that side. Conservatives are jubilant but liberals are petrified and angry. Yeah. We have one more big, big case and then we're gonna step back and look ahead a little bit and also some questions have come in. I just have to say one. Irwin of the questions that have come in almost all of them start with these three words. Are you worried? We'll get there, I shouldn't be laughing. Second amendment, a case involving the second amendment the right to bear arms, constitutional right to bear arms. What did they decide and what does that one mean? I think it's important to begin by saying from 1791 when the second amendment was adopted until June of 2008, never was any law federal, state or local that regulated guns declared unconstitutional by the Supreme Court. For all of that time whenever there was a second amendment case the Supreme Court said the second amendment means what it says is what a right to have guns for militia service. Remember the second amendment says a well-regulated militia being necessary if the security of every state threatening people to keep their arms shall not be infringed. In June, 2008 in District of Columbia versus Heller the court for the first time declared unconstitutional a law regulating guns. It was a 32 year old DC ordinance that prohibited having hand guns either owning or possessing them. And the Supreme Court five to four said there's a right to have guns in the home for the sake of security. Well, the case that was decided on June 23rd is New York State Rifle and Pistol Association versus Bruin. It involves a New York law adopted in 1907 that says that in order to have a concealed weapon in public, you need a permit in order to get a permit among other things you have to show cause for having it. The New York court said cause me showing a safety need for having a concealed weapon. California's law was almost identical to this. The Supreme Court in a six to three decision declared this unconstitutional. Justice Thomas wrote the opinion for the court Justice Breyer wrote the dissent. Justice Thomas said that the second amendment includes a right to have guns in public and concealed weapons. That's significant in itself. But even more important he said the only gun regulations are allowed are those that were historically permitted. And he said we're not gonna decide whether historically permitted means 1791 or 1868. Justice Barrett wrote a separate opinion saying we haven't decided whether historically permitted means 1791 or 1868. And so here to go back to our discussion of originalism the Supreme Court is saying the only kind of gun regulations allowed in 2022 are those that were allowed in 1791 or 1868. This has opened the door to tremendous challenges to every kind of gun regulation. Yesterday I was in San Diego and I spoke at the California Judges Association Conference and some judges came up to me afterwards and said that any case they have that involves any gun law there's a second amendment challenge. California is a law that makes it a crime for a felon to be in possession of a gun. Well, there's challenges to that. California is a law that regulates the size of ammunition magazines. There's a challenge to that. California is a law that permits salt weapons like AR-15s. There's a challenge to that. This case is really again opened the door to tremendous litigation. I think the Supreme Court's gonna need to clarify what's allowed not allowed. This is the most expansive, aggressive protection of gun rights in all of American history. Yeah, but it sounds that way. And then of course your mind goes immediately to we'll wait a second. There weren't semi-automatic weapons in the 19th century. Justice Thomas and his majority opinion said the second amendment is not limited to protecting the weapons that exist in 1791. Justice the first amendment is not limited to protecting the media that existed in 1791. He said courts are gonna have to rule by analogy. Let me again give a concrete example. Little over a month ago, California Governor Gavin Newsom signed into a bill that created civil liability that for among other things, anyone who gave a handgun, sold a handgun to someone who 21 or a long gun to someone who are 18. And that's challenged the question is, well in 1791 would that law have been constitutional and we live in such a different world as you say in terms of the type of weapons, in terms of where we live, in terms of the threat of guns in society. That's why Justice Breyer began his dissent by talking about the problems of gun violence, the mass shootings that have occurred just in the last year. And the studies that show that laws like New York's really do decrease gun deaths, but none of that mattered for the majority. Before we move on to next year, there was something else I was struck by in this decision in the Second Amendment decision involving arms. And that is in this case, the dissenters, the three liberal justices said, this is a matter for the legislature and the political process. And I thought that sounds kind of familiar. That's exactly what the conservative judges said regarding abortion. So it seems so, the positions are so fluid and maybe matters of convenience at times. The central issue in constitutional law always is, what should be left to the legislatures and the political process, as opposed to when should the court enforce the constitution is a limit on the legislatures in the political process. Both liberals and conservatives at times want to defer to the political process and at times they want the court to overrule the political process. Think of the cases that we've talked about in this hour. For abortion, the conservatives want to leave abortion to the political process. Liberals want the courts to protect the right. In the religion cases we talked about, the liberals want to leave the matter to the political process, to the main legislature, to the Bremerton School Board, but it's the conservatives who want to limit the political process. In the gun area, it's liberals who say, the legislature can best regulate, protect public safety. It's the conservatives who want to limit the legislature. So there is no consistency. It's all about what one believes the constitution should be protecting. Have we ever had an apolitical Supreme Court in our country? I want to be very careful when you use the word apolitical. In one sense, the Supreme Court is not political. No one goes and lobbies Supreme Court justices in the way that they would lobby legislators. If anybody tried to go into a justice chamber in the way you would go into a city council member or a member of Congress, they would get thrown out. There's no indication of corruption among Supreme Court justices. There's no indication of vote trading. So in that sense, it's not like a political body. But has there ever been a non-ideological Supreme Court? No, and the reason is the constitution is written in a very broad language. How it's interpreted, it's entirely a function of who's on the bench. Take Marbury versus Madison in 1803 that established the power of judicial review. Everyone believes that's because of Chief Justice John Marshall and his fellow justices views. From the 1890s to 1936, a very conservative court struck down over 200 progressive laws taking workers and consumers. The first child labor law got struck down by the Supreme Court. Minimum wage laws really got struck down by the Supreme Court because they're ideology. We all know of the Warren Court. Earl Warren, a graduate of Berkeley Law School was Chief Justice from 1953 to 1969. It was the one time in history there's a liberal court and we can take off all the things it did. Now we have a very conservative point, but there's no such thing as value neutral judging on the Supreme Court. Now when it comes to deciding things like what does liberty mean? What's the equal protection? What's a compelling government interest? Wow. So let's look ahead to next year. Can you pick out two cases that are coming up for decisions that could be potential blockbusters? Sure. The first I'll talk about is gonna be argued on October 31st. They involve affirmative action. The case are students for fair admission versus University of North Carolina and students for fair admission versus Harvard College. In 1978, in Regions, the California University of Bakke, in 2003, in Gruterus Bollinger, in 2016, in Fisher University, Texas, the Supreme Court said that college universities have a compelling interest in every diverse student body. They can use race as one factor in many of their decisions to benefit minorities. Now, of course, in California, because of Proposition 209 that was adopted in 1986, college universities can't do that, but almost every other state, they can. And I think that everyone expects that the Supreme Court is gonna overrule Bakke and Grutter and Fisher. It's gonna be six to three in the North Carolina case, six to two in the Harvard case, because just as Jackson is recused, and every college university is gonna have to deal with what California's had since 1996, not being able to gauge an affirmative action. And we saw the devastating effect here at Berkeley or UCLA or in Michigan, when they adopted the University of Michigan of eliminating affirmative action. There's another case that's a bit more complicated called Moore versus Harper. It comes out of North Carolina. The North Carolina legislature is controlled by Republicans. They decided to draw congressional districts so Republicans would control 11 of 14 seats. That's even though Republicans and Democrats are basically 50% each in North Carolina. So this is a case about elections? Yes. Okay, sorry. No, thank you. The North Carolina Supreme Court found that this partisan gerrymandering violated the North Carolina Constitution. And they had a commission that re-drew the districts. A challenger has gone to the Supreme Court and said that under the Constitution, under Article I, Section 4, only the legislature gets to decide, state courts can't enforce the state constitution. Now, this is significant in itself, but also there's another provision in the Constitution, Article II, Section 1, that says legislatures decide how the electors for the Electoral College are chosen. Here's the Supreme Court sides with the challengers here and adopts what's called the Independence State Legislature Theory. Imagine 2024. Imagine it's as close as 2020 was in the election. And imagine there are some states that have Republican legislatures, but the Democratic candidate won the popular vote. Hypothetically make them places like Georgia, Arizona, Wisconsin. And imagine that the legislature says, doesn't matter what the popular vote was, we're giving our electors to the Republican candidate and that decides the Electoral College. I think if that happens, our country would come apart. And yet that's what's at stake in Moore versus Harper, is to whether state courts can enforce state constitutions when it comes to the electoral process. Wow, are you nervous? I'm very nervous. I mean, I think that I'm worried what it's gonna mean for diversity in education, for the Supreme Court to eliminate affirmative action. And I'm very worried what it's gonna mean for our democracy if the Supreme Court adopts the Independence State Legislature Theory. I don't have any hope with regard to affirmative action. It's clear based on past opinions, what's gonna happen. But I'm still hopeful that Moore versus Harper, the Supreme Court will reject the Independence State Legislature Theory. Well, I could go on for a long time here. We only have a few minutes left. I wanna get to some of the questions that came in. The first one is as follows. How are you thinking about educating constitutional law students in this new increasingly political view of the law? Precedents aren't sticking, et cetera. Does a robust understanding of law and precedent matter as much as it did? Or do law students need to start thinking more politically? Interestingly though, that's phrased with an or, I would say yes to both halves. I would say on the one hand, as a constitutional law professor, I need to do the same thing that I've always done. I need to teach my students the laws that's articulated by the Supreme Court, because that's the law they have to use in their cases. Mostly they're gonna be litigating in federal district court, federal court appeals, state courts, and those courts have to follow the Supreme Court precedent. They need to know it. And most of all, what I do in my class is try to help my students learn how to develop constitutional arguments. And they still need to know that. Now, of course, the outcome in the Supreme Court or in any court often depends on the identity of the judges, but all they can do as lawyers, all I can ever do is write the best brief I can, make the best oral argument I can, knowing that it's gonna depend on the views of the justices. But in terms of the latter part of the question, I do think it's important to look at other forms. I think we need to do more to educate our students about using state courts and state constitutions. We need to remind them of the importance of looking at the political process in order to achieve goals, where that's possible. But as you and I have talked about, there are places where the Supreme Court's leaving things to flip process, but there's also things like second amendment where the court's not leaving it to the political process. Right. So we talked in the very beginning, the next question is, are you worried about the, are you worried about the legitimacy of the court? And we spoke about at the very beginning about some of the peril inherent to the fact that during this time of extreme political polarization, the court itself is moving to the edge, the edge of the ideological spectrum. And I also know something that I read that you wrote, the Gallup poll in fall 2021 revealed the court has its lowest approval ratings in history, 40% approval. And a new Gallup poll shows that only 25% of the American people have confidence in the Supreme Court. Talk to us a little bit about what appears to be a real weakening of trust in the court, in its legitimacy. What that means for our democracy. And the only poll that I've seen that was taken after the June decision we discussed had the court's approval rating going down even more. Our cat university poll had the Supreme Court's approval rating down to 38% and disapproval at about 60%. I think we have to situate this in terms of the approval ratings for government overall. President Trump's approval ratings were in the low 30s for most of his presidency. President Biden's approval ratings have been in the 30s for much of his presidency. Congress approval rating is 18 and that may be 18 people, not 18%. And what does it mean to have such low public confidence in all of the branches of government? In particular, what will it mean for the Supreme Court if it continues to have such low approval ratings? Now to be fair, the court's approval ratings have gone up among publicans and gone down among Democrats, gone down overall, but because it's something I said earlier, at a time when our society is so politically divided, what will it mean when the court is seen is coming down solidly on one side of that divide? So in the political process, we could end if we were talking about the political process, we could end this conversation with a call to go vote and to be involved, to be active. But here we have justices there for lifelong terms. Whoa, what does the average person do with all this? Is there, I mean, is it just something to sort of, if you disagree with the court's positions, kind of take a deep breath and hang out for the next 50 years or are there things that we can do as citizens to try to confront some of the impacts of decisions that may not sit well with us? And I'm, that question would be as valid for liberals right now as it was for conservatives in the past. Absolutely. First, I hope that people will be educated about the constitution and what the Supreme Court is doing. That's why I'm so grateful to you for inviting me to do this program. Second, elections really matter. Look at the effect of the 2016 election. When it comes to the November election, if the Republicans take control of the Senate, Joe Biden's not gonna get anyone confirmed with the court of appeals, let alone if there's a Supreme Court vacancy. This election is gonna matter enormously in terms of what the political process can do in the next two years in all areas. I think it's important for people to become aware of the ability to use state courts and state constitutions to protect rights. I think it's important for people to mobilize on issues. One of the things that Dobs has caused is for people to no longer take for granted there's a right to abortion because it's not gonna exist on over half of the states. And to the extent that this is gonna cause people to get mobilized in the political process, mobilized with regard to state court litigation, mobilized in the long term, I think that's a good thing. I think we need to work with others, similar views with a liberal or conservative to advance that. And I think it's quite important that liberals develop their theory of constitutional law. Conservatives did a very good job of developing a theory. They call it originalism over the last half century. Now it's time for progressives to develop a progressive theory of constitutional law. I think that's a great way to end this hour. With that call to action and engagement with the democratic process. Irwin, I wanna thank you so much for your time and for your wisdom for sharing that with us and for, I know what is for many people in the Berkeley community for fighting the good fight. I wanna thank everybody for joining us today for this first campus conversation. Look forward to see you for the next one. We'll be talking to new deans from the College of Letters and Science. Irwin, again, thanks. Great to see you. Thank you.