Erwin Chemerinsky

Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

Recent Articles

Trump’s ‘Emergency’ Action: Unlawful and Unconstitutional

Presidents have no extra-constitutional powers during real emergencies, much less fictitious ones. 

The federal courts and ultimately the Supreme Court should quickly and emphatically hold that President Trump’s attempt to fund the border wall by declaring a national emergency is illegal and unconstitutional. In 1974, when President Richard Nixon made an unprecedented claim of executive power to resist complying with a subpoena from the Watergate special prosecutor, the Supreme Court unanimously rejected this assertion and enforced constitutional checks and balances. We should hope and expect that even the conservative Roberts Court, with two justices appointed by President Trump, will likewise follow the Constitution and reject Trump’s dangerous claim of emergency powers. The Constitution has no clause that gives the president emergency powers. This was a deliberate and wise choice. The framers of the Constitution wanted to make sure that its requirements, including checks and balances, are enforced even in times of crisis. Indeed, when prior presidents have tried to...

The First Priority: Making America a Democracy

How Americans can move their country closer to majority rule

This article appears in the Winter 2019 issue of The American Prospect magazine. Subscribe here . Americans cling to many myths. One is that we live in a democracy. To be sure, there are aspects of our government that are democratic. There are regular elections that choose many of the officials who make the laws and govern our society. But in other ways, American government is profoundly undemocratic. We are governed by a president who lost the popular vote by three million votes. Twice in the last 16 years, the candidate who lost the popular vote was nonetheless selected as president because of the Electoral College. There is no other democratic country in the world where that can happen. Nor does any other democracy have an institution like the U.S. Senate. Because every state, regardless of its size, gets two senators, the Senate is hugely unrepresentative of the country. California, with 39.5 million people, has the same number of senators as Wyoming, with a population of 579,315...

A Very Tarnished Court

Kavanaugh, or his replacement, will be the fifth Republican justice sitting illegitimately. 

Conservatives are about to fulfill a quest that began with Richard Nixon’s campaign for president in 1968 and intensified during Ronald Reagan’s presidency: putting a staunch conservative majority on the Supreme Court. But the way that they have accomplished this has greatly tarnished the Court, perhaps irreparably. It is impossible to know the long-term consequences of this, but the Court and how it is perceived will never be the same. Even if the Democrats gain control of the Senate in November, President Trump is sure to have a nominee confirmed by January, whether it is Brett Kavanaugh or someone just as conservative. This will create the most conservative Court since the mid-1930s, with five justices at the far right of the political spectrum. No longer will there be Republican appointees like John Paul Stevens or David Souter, or even a moderate conservative like Lewis Powell, Sandra Day O’Connor or Anthony Kennedy. What is stunning is that each of the five...

A New Era for the Supreme Court

Its guiding principle will be the Republican Party platform.

(Fred Schilling/Supreme Court via AP)
The just completed Supreme Court term will come to be regarded as the beginning of a new era in constitutional history: a time of a very activist Court that aggressively follows the conservative political agenda. This term was the most conservative since October 1935, when the Supreme Court repeatedly declared unconstitutional key New Deal laws. The 2017–2018 term was a year filled with cases of unusual importance, and the conservative position prevailed in almost every case. One measure of this term’s conservatism is found by looking at the 5–4 decisions. There were 19 5–4 rulings out of 63 decisions. Justice Anthony Kennedy voted with Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch in 14 of them. He voted with the liberal justices—Ruth Bader Ginsburg, Stephen Breyer, Sonya Sotomayor, and Elena Kagan—zero times. A year ago, in the ideologically divided cases, Kennedy was with the liberals 57 percent of the...

Remembering Judge Stephen Reinhardt

The legacy of the great liberal appellate judge, who died Thursday at 87

One of President Jimmy Carter’s greatest legacies was the terrific judges he appointed, especially to federal courts of appeals. Carter never got to appoint a Supreme Court justice. However, he did appoint nine women to federal courts of appeals judgeships—before then, only two women in all of American history had ever been federal court of appeals judges. Carter relied on merit selection committees, and that process yielded a group of truly excellent judges. One of the greatest of them, Judge Stephen Reinhardt, died yesterday at age 87. Reinhardt will be most remembered as a liberal judge in a time of an increasingly conservative Supreme Court. The majority of the Supreme Court justices were Republican appointees for the entire 38 years that Reinhardt was on the bench. It meant that he was sometimes reversed by the higher Court. But he was always steadfast that his role was to interpret the Constitution and the law to the best of his ability, not to predict what the...