50 years of the constitution

He calls the U.S. Supreme Court a failure and “an emperor that truly has no clothes.”

The best advice he received from mentors that he passes along to law students today?  “Don’t make any dumb-ass arguments.”

Erwin Chemerinsky doesn’t mind speaking his mind — whether it’s calling out decisions made by the nation’s high court in his book “The Case Against the Supreme Court” or by blunting telling students and the public his take on challenges in the legal system today.

While some are taken aback by Chemerinsky’s unapologetic liberal arguments, no one can dispute that people listen when he speaks: He’s been named as “The Most Influential Person in Legal Education” by National Jurist magazine and regularly pens op-eds published by some of the nation’s most trafficked news sites.

This week, he’ll visit the U on Feb. 4 as the keynote speaker for the 50th Annual Leary Lecture, an event at the S.J. Quinney College of Law that began in 1965. The lecture is named in honor of William H. Leary, dean of the law school from 1915 to 1950.  Hundreds from Utah’s legal community and the general public are expected to attend Chemerinsky’s lecture, “50 Years of Constitutional Law: What’s Changed?” which starts with a 5:30 p.m. reception, followed by 6 p.m. lecture on the sixth floor of the law school, 383 South University Street. (The event is free and open to the public, but registration is requested).

Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties and appellate litigation. He is the author of seven books, including the casebook “Constitutional Law,” which is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media.

“For decades, Dean Chemerinsky has been one of the pre-eminent experts in U.S. constitutional law and the U.S. Supreme Court, always insightful and sometimes provocative,” said Bob Adler, dean of the S.J. Quinney College of Law. “As the nation continues to debate the meaning of our late 18th century constitution for a 21st century United States, we are delighted to have him join us to provide a retrospective on the past 50 years of constitutional law for the 50th Annual William H. Leary Lecture at the College of Law.”

Chemerinsky recently spoke to @TheU about his upcoming lecture, life and the law.

Q: Your talk at the University of Utah for the S.J. Quinney of Law’s annual William H. Leary Lecture is titled “50 Years of Constitutional Law: What’s Changed?”  There’s a lot of ground to cover over 50 years, but what are some of the key elements that you’ll be discussing?

A: I was tempted to do a year a minute, but decided that was not a good idea. Instead, I want to focus on some major changes in constitutional law over the last 50 years: the debate over unenumerated rights, triggered in part by Roe v. Wade; the rise of concern over structural limits on government, federalism and separation of powers; restrictions on access to the courts; the far greater commitment to freedom of speech; the rise of concern for equality, but the abandonment of the quest for racial equality, especially as to the schools.

Q: Your book, “The Case Against the Supreme Court,” asserts that the U.S. Supreme Court has for too long been treated as “high priests of the law” and “the smartest and best lawyers in society.”  Why do you feel this way? What are your criticisms of the high court? Have the court’s decisions over the last 50 years contributed to your opinion? And which decisions in particular do you believe have caused the public to view the court as “high priests of the law?”

A: The thesis of my book is that the Supreme Court often has failed, often at the most important tasks and most important times. I think that includes many decisions of the last 50 years, especially with regard to race, access to the courts and protecting people from violations of their rights by businesses.

Q:  What reforms would you like to see take place in the court system — and do any of the reforms you’d like to see currently have any momentum in moving forward?

A: Most generally, I would like to see reforms to open access to the courts:  Increasing the ability to sue government and government officers, increasing who has standing to sue, expanding the availability of habeas corpus, lessening pleading requirements. These are the focus of a new book I have coming out next fall. As for the Supreme Court, I favor term limits for justices, merit selection, a more meaningful confirmation process, greater openness including live broadcast of proceedings, greater ethical standards for justices.

Q:  The court seems to be divided on political lines. Do you think that apparent division is appropriate, or should the court be able to rise about political positions?

A:  The value and ideology of the justices always has and always will influence and often determine decisions.  The Constitution is written in broad language: What is due process? What is cruel and unusual punishment? Also, balancing is inevitable. What is a compelling interest? What is reasonable? That requires value choices. The ideological divide is especially evident now because of the partisan divide in society and also the close split on the current court.

Q:  There has been a lot of discussion about original construction versus a living constitution. How do you harmonize, if at all, those two divergent schools of thought?

A: Originalism and non-orignalism cannot be harmonized. Originalism says that the meaning of a constitutional provision is fixed when it is adopted and can be changed only by amendment.  Non-originalism sees the Constitution’s meaning as evolving by interpretation as well as amendment. Thankfully, the court always has been non-originalist. It would be undesirable and even absurd to be limited to what people thought in 1787.

Q: You are dean of the law school at the University of California at Irvine and spend time during the year traveling to other law schools around the country, including the University of Utah.  What do you think law schools do well and what areas do you think need improvement? 

A: I think law schools historically do an excellent job of teaching analytical skills and a not very good job of teaching the practical skills that lawyers need: How to interview clients, how to counsel clients, how to negotiate, how to take depositions, how to argue in court.  I strongly believe in clinical education. In fact, at UCI Law School we require that every student participate in an in-house clinic taught by a full-time faculty member.

Q: You’ve been an educator for more than 30 years.  When law students ask you what are the most important skills and traits they need to be successful lawyers, what do you tell them?

A: To find a job that they love. No one can succeed as a lawyer (or anything else) without working very hard. That is only possible if one loves one’s work. I also hope that they will be ethical, compassionate and kind.

Q: What’s the best advice you ever received from any of your own mentors?

A: “Don’t make any dumb-ass arguments.” I was a college debater. At my first college debate tournament, to the shock of everyone, my partner and I made the elimination rounds. Before the round, we went up to our coach — a man I enormously admire (then and now) and asked for his advice. He looked at us and in his Texas drawl gave that advice.  I have passed it on to my students over the years.