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What Did Chemerinsky Think of the SCOTUS 2017 Term?

By George Khoury, Esq. on January 08, 2018 11:54 AM

One of the leading constitutional law scholars in the country, Erwin Chemerinsky, recently wrote a piece for the ABA Journal reflecting on the United States Supreme Court's 2017 term. Although the year was filled with big decision, he believes the biggest news of the year was the appointment and confirmation of Neil Gorsuch.

In addition to the controversial appointment, Chemerinsky explains that the term has seen some unusual interplay between the High Court and the new executive branch, right off the bat. Also, he notes that the Court actually handled issues of race and did so in unexpected fashion.

How Do You Solve a Problem Like Justice Gorsuch?

Chemerinsky believes the confirmation of Justice Gorsuch heralds a new legislative tradition, whereby when a president and the majority of the legislature share a political party, confirmation will be a slam dunk. This is due to the new rule prohibiting filibusters on SCOTUS nomination confirmations. Interestingly, Chemerinsky notes that while the "no filibuster" rule was introduced and passed by Republicans after denying Merrick Garland a hearing, a similar rule was previously passed by Democrats to apply to lower federal court confirmations.

Clearly, Chemerinsky is concerned about the implications of party politics obfuscating the checks and balances provided by the judicial branch as SCOTUS nominations won't need to garner bipartisan support going forward.

Race With the Executive Branch

One of the more interesting issues Chemerinsky addresses is the fact that the Trump administration has actually had matters reviewed by SCOTUS in rather short order. In addition to the travel ban cases that seemed to make it up to the High Court faster than the administration's policy could expire and be rebooted for a third time, the executive branch's policy reversals led to significant cases from the previous administration being dismissed.

And while there were notable civil rights cases involving race and criminal justice, Chemerinsky believes the most important First Amendment case was also a race case of sorts. The Matel v. Tam case broke the old rule against trademarks being available for offensive marks, as the Court allowed a rock band that reclaimed a pejorative term for their name to trademark that name.

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