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Expect More Footnotes

When the Supreme Court began its new session this month, the justices were joined by newcomer Elena Kagan, who assumed her role as associate justice after an uneasy confirmation hearing last spring. She begins serving at a time when liberals feel disenchanted about the direction of the country and when many issues important to progressives are likely to come before the court.

TAP recently spoke with Erwin Chemerinsky, the founding dean of the University of California, Irvine, School of Law and author of the new book The Conservative Assault on the Constitution, to discuss the future of the Roberts’ Court and conservative dominance over America’s highest court.

Elena Kagan began her role as associate justice this month after facing some uneasiness from liberals during her confirmation hearing. Many of those liberals seemed unsure what her actual beliefs were. Do you have any concerns?

We know less about Elena Kagan’s judicial philosophy than any nominee for the Supreme Court at least since Sandra Day O’Conner in 1981. She’s never been a judge, so we don’t have prior judicial opinions to read. As a law professor, she only wrote five major articles, none said anything controversial. She never wrote op-eds or made statements to the press about her beliefs. The confirmation hearings gave us almost no sense of what she thinks. So the reality is, no one knows. The advantage she offered to President Obama [was that] she was an easy confirmation because she had almost no paper trail. The disadvantage [was that] neither he nor anyone else can really know what she believes.

Kagan will sit out about half of the 54 cases on the docket because she worked on them as United States solicitor general. Sen. Patrick Leahy recently introduced legislation that would allow the court to assign one of the three retired justices to fill in for her so as to avoid a 4-4 decision. What do you think of this idea?

I think it’s a terrific idea and nothing to do with who the retired justices are; it’s just a 4-4 split leaves important legal issues unresolved.

Are there any upcoming cases on the docket of particular concern to liberals?

I think the Arizona-Christian Schools case on whether the government can, through its tax system, subsidize religious schools, and who has standing to challenge it, becomes very important. The Obama administration, unfortunately, is arguing against [the state government having] standing, and I think this could be an enormously important case in terms of separation of church and state. I worry that there are five justices on the current court that [could] dramatically change the law in regards to separation of church and state. That is, obliterate the law separating church and state. And this could be the case where we see it. It’s very discouraging [that] the Obama administration came out saying no standing to challenge.

This Supreme Court will be the first to have a total of three women. Do you see this affecting the direction of the court?

Oh, of course it will. It’s a group of nine people and the dynamics of the group are a product of who’s there. And I do think that it matters that there are now three women justices on the court. I don’t know if we’ll be able to say in this case or in that case, it’s what’s decisive, but it’s a different dynamic. I think it’s a different dynamic that four of the justices spent most of their time before going to the bench as law professors. It may explain why the opinions keep getting longer and with more footnotes.

You write in your book about the ways conservatives have used presidential power to shape the court in their favor and mold the constitution. Do you think there’s any way liberals can combat it?

I think in many ways. One thing we’ve got to do is to show that the conservative emperor has no clothes. That Antonin Scalia and Clarence Thomas aren’t following a neutral methodology; they’re making value choices. And one of the things I say in the book is that if you look at Scalia’s constitutional philosophy: He’s against abortion rights, he’s against all forms of affirmative actions, he’s in favor of allowing prayer at schools, he’s in favor of allowing the government to give aid for prayer in government schools, he’s in favor of the death penalty, and so on. Unless you believe that the framers were the same as the 2008 Republican platform, what you’re doing is just following current conservative ideology. I think you can better understand the conservatives on the Supreme Court by reading the 2008 Republican platform than reading the Federalist Papers.

Do you see any hope on the horizon for liberals?

I do. I really believe for the long term there’s great basis for hope. This is how I conclude the book — that if you look at the overall sweep of American history, it’s a tremendous advancement of equality and freedom. I think in hindsight people will look at the last few decades as a regressive time of retrenchment, but I believe overall there’s going to be advancement. I believe in my lifetime gays and lesbians will have marriage equality. I believe in my lifetime there will be major changes in constitutional law to advance racial equality. But not from this Supreme Court, and not in the foreseeable future.

This Q&A has been edited and condensed for clarity and length.

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