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The Constitutional Impact of the Election

chemerinsky.jpgAlmost all lawyers know the name Erwin Chemerinsky. That’s because almost all lawyers prepare for the bar by taking classes with BarBri, and they therefore all wind up seeing a six-hour lecture by Chemerinsky, done entirely from memory, which is basically everything you need to know about con law. It’s pretty impressive. Dude is smart, I’m saying.

So when he writes an article about the major impact the upcoming election could have on the make-up of the Supreme Court I, for one, pay attention. It boils down to this:

As a result of its current makeup, however, the Supreme Court is likely to tilt only in one direction after this year. Simply put, the November election may well determine whether the court becomes significantly more conservative or its ideological balance remains roughly the same. And a McCain-shaped Supreme Court, pushed farther to the right, could have dramatic and long-lasting consequences for the rights of Americans.
Even if Obama wins the election, it is far less likely that the Supreme Court will become more liberal in the near term. This is because any vacancies on the court between Jan. 20, 2009, and Jan. 20, 2013, are likely to come among the three most liberal justices. John Paul Stevens is 88 years old. Although he is in good health, it seems unlikely that he will still be on the court at age 93 in 2013. Ruth Bader Ginsburg is 75. Perhaps because she is frail in appearance there is always speculation that she might step down. There is a widely circulated rumor that David Souter (now 69) wants to retire and go home to New Hampshire.

Because I’m a liberal, I generally prefer the liberal justices to the conservatives. But frankly, I wouldn’t want an entirely liberal bench. There is much to be said for a properly weighted bench that has voices covering the spectrum. But the notion of the Supremes getting more conservative, and the fact that it would likely keep that conservative bend for quite some time … well that scares the crap outta me.

Anyway, for those of you trying to educate yourself about this election, Chemerinsky’s article makes for a good read.

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Comments

I'm sad that Chemerinsky left to Duke right before I got to 'SC, and I never had a chance to have him as a professor. Not only did he have his entire BarBri lecture memorized, but he had it memorized down to the outline numbering - "big A," "little i" - it was effin' amazing! I think that if anyone can pull off being the inaugural dean of the UCI Law School, he can do it. Now, whether California *needs* yet another law school is a different matter... ;)

And I agree. While we might dispute which of Bush's acts had the most significant and lasting impact on Americans, I think being able to appoint two justices, including the chief justice, is high on that list.

Who's the conservative in this election? As far as I can tell they're both populists. The supremes are almost always really the most important part of the presidential election, though, that's for sure.

A couple other points; first, isn't the SC 5-4 liberal right now? So McCain could at worst give a slight advantage to the conservatives. Second, I love the fear mongering once again. "Dramatic consequences for abortion rights, sexual privacy," blah blah blah. That's the same thing that was said when David Souter was nominated. It disappoints me when (apparently) very educated and intelligent people engage in scare tactics to get their point across instead of reasoned argument.

Well let's see Eep:

On the right you have Roberts (who has not been the unifier he was lauded to be), Alito, Scalia, Thomas.
On the left you have Souter, Bader-Ginsberg, Stephens, Breyer
And Kennedy very much in the swing seat so, I think your math on the skew is wrong.
Ypu're also making a huge assumption about what he intended in writing about draatic consequences for the American people. The most dramatic decision SCOTUS has made in recent times was on the issue of eminent domain which, yes, has potential dramatic consequences for any property owner in the country.

When I was watching Erwin's BarBri lecture all I could think about was how he looked almost exactly like my boyfriend's grandmother.

He's just so darn cute!

"At worst" was a poor way to put it. Obviously three seats have a real potential change from liberal to conservative. I would assume that Stevens is very likely to step down in this term, but that it's unlikely that both Souter and Ginsburg would step down at a time when they felt that doing so would skew the court. Perhaps I'm wrong about that. My main point is that we're starting from a skew to the left right now, so moving a seat or two to the right is just fine by me (well more than fine from my personal perspective, but even if I'm trying to be "fair," it's still not that bad).

And of course I'm making an assumption. It was my interpretation. I call it fear mongering based on the fact that the language repeats the warning cries of the '80s after which none of the evil tidings came true.

"Because I’m a liberal, I generally prefer the liberal justices to the conservatives. But frankly, I wouldn’t want an entirely liberal bench. There is much to be said for a properly weighted bench that has voices covering the spectrum. But the notion of the Supremes getting more conservative, and the fact that it would likely keep that conservative bend for quite some time … well that scares the crap outta me."

AMEN! I agree.
Stevens is 88 years old.
I really want Scalia to step down.
Thomas? He doesn't really contribute much to the court. YAWN.

Even if he can't shift the court significantly towards the liberal side, Obama could make it tougher to move it back to the right in the future by appointing some young liberals in the place of the current ones.

I am starting to wish that I said something more pithy and just generally smarter than how I think Erwin is cute.

But I still stand by that comment!