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Dean of UNC-Irvine Law Erwin Chemerinsky discusses the history of the Supreme Court aligning itself with business interests and why today’s Court is the most pro-business since the 1930s

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JESSICA DESVARIEUX, PRODUCER, TRNN: Welcome to the Real Capitol Hill. I’m your host, Jessica Desvarieux, coming to you from the Russell Rotunda. News on the hill is buzzing about who President Obama will nominate to replace Justice Antonin Scalia. But, instead of speculating over the future, we wanted to bring you the real story, and talk about the interests and history of those who have served on the court. Now joining us to do just that is Erwin Chemerinsky. He is the law school dean at the University of California Irvine, and he’s also author of the book The Case Against the Supreme Court. Thank you so much for joining us, Erwin. ERWIN CHEMERINSKY: Thank you for having me. It’s really a pleasure. DESVARIEUX: So Erwin, we touched upon this in the first part about how the court has really been the decider for elite interests. Can you just discuss, historically, how has the court aligned itself with business interests? CHEMERINSKY: Prior to the Constitution there’s the Articles of Confederation. There was no Supreme Court under the Articles of Confederation. All of the delegates of the Constitutional Convention quickly agreed that there needed to be a federal judiciary, at least in terms of having a United States Supreme Court. And so Article 3 of the Constitution creates the Supreme Court. It gives to the justices of the Supreme Court and all federal judges life tenure. The Constitution, though, doesn’t speak of the power of courts to declare unconstitutional laws or executive actions. That comes from a Supreme Court case in 1803, Marbury v. Madison. Throughout American history the Supreme Court has used that power much more to favor the wealthy, corporations, the elites in society, than to favor consumers, or employees, or patients in the medical system. So, for example, from the 1890s to 1936, the Supreme Court declared unconstitutional over 200 federal, state, and local laws designed to protect workers and consumers. During this time the Supreme Court repeatedly declared unconstitutional minimum wage laws, maximum hour laws. The court during this time declared unconstitutional the first federal law to limit the use of child labor in manufacturing. All of these were decisions that strongly favored businesses at the expense of the people of the country. But that’s not just a long time ago. The Roberts court, which has existed since 2005, has been the most pro-business Supreme Court since the 1930s. That’s not just my opinion. A couple years ago a book came out by Richard Posner, a Federal Court of Appeals judge, William Landes, professor at the University of Chicago, and Lee Epstein a professor at Washington, St. Louis. And they concluded, by a number of statistical measures, that this is the most pro-business court there’s been since the 1930s. So, to pick a single example of this, the Supreme Court, over the last several years, has held that makers of generic drugs cannot be sued. They can’t be sued in federal court. They can’t be sued in state court. They can’t be sued on a design defect theory. They can’t be sued on a failure-to-warn theory. The court has given broad protection [to] generic drug companies at the expense of those who are injured by the products. The FDA says over 90 percent of all prescriptions are filled with a generic drug, [the] generic equivalent to the brand name, and the Supreme Court has made it almost impossible to sue generic drug companies, favoring business, the elite, over patients, over all of us. DESVARIEUX: Erwin, some would argue that it’s not that the court is intentionally aligning itself with these conservative principles, but it’s just the nature of the law, because you’re relying on case precedent which historically has been in the interests of the elite. So what do you make of that argument? Do you agree with it? And do you think the court can be more progressive and challenge the status quo? CHEMERINSKY: I don’t agree with that. I think of the times when the court has performed the best. I think of Brown v. Board of Education in 1954, that held that ‘separate but equal’ has no role in American public education. I think of Obergefell v. Hodges, from June 26, 2015, where the Supreme Court held that state laws prohibiting marriage equality deny equal protection and violate due process rights for gays and lesbians. So I think that the court can be a progressive institution. Unfortunately, too often it hasn’t been. DESVARIEUX: Are its members just too aligned with these corporate interests? I mean, many of them come from backgrounds where they’ve actually been defending corporations, and some may argue that they’re just out of touch. What do you make of that? CHEMERINSKY: I think there is a real danger that the Supreme Court, and that federal judges, can be out of touch with the larger society. After all, they have life tenure. They don’t have to go before the voters. Going before voters is a humbling experience, and the Supreme Court justices never have to do that. They undoubtedly live in a bubble. All of this means that there’s an especial need on the part of the Supreme Court and the federal judges to find ways to make themselves open to diverse and divergent voices, something that’s not always there. DESVARIEUX: Let’s talk about those ways. How can the court actually become more of a people’s court? What would you suggest, beyond just more transparency and televised oral arguments? What type of reforms would actually, fundamentally change the court’s alignment? CHEMERINSKY: I think it is inexcusable that there are not cameras in the Supreme Court for every proceeding that takes place there. THere’s about 350 seats in the chambers of the Supreme Court, and yet the court’s decisions often affect all of us in the most important, the most intimate aspects of our lives. Too often the Supreme Court does things invisibly. When the court votes to grant or not grant review in a case, we never know which justice voted which way. The Supreme Court not long ago stopped regulations from going into effect to limit greenhouse gas emissions from power plants. Not one justice offered a word of explanation. So I think transparency is key. Another reform that I’d like to see is 18-year, non-renewable term limits for Supreme Court justices. Thankfully, life expectancy is a lot greater today than it was back in 1787 when the Constitution was written. I think that it’s just now that there are individuals serving on the court for too long a period of time: too much power in the same hands for too long a period of time. Clarence Thomas was 43 years old when he was confirmed to the Supreme Court in 1991. If he remains on the court until he’s 90, the age when Justice Stevens stepped down, he will be a justice then for 47 years. Too much now depends on the accident of history in terms of when vacancies occur. DESVARIEUX: But I want to push back a little bit, because some would argue that we need the justices to remain independent, which means that these justices need to serve life terms so they’re not swayed by the politics of the time, or any outside interests. So what do you make of that argument? CHEMERINSKY: Eighteen years is a long time in a persons life. [I think] it would allow the person to develop the learning curve and master the job, but not be there so long as to be out of touch with the larger society. I think if there were 18-year, non-renewable terms, presidents would tend to pick people a bit later in their career, not a 43 year-old like Clarence Thomas or 50 year-olds like John Roberts and Elena Kagan. So you’ll have individuals for whom this is the capstone of their career. Also, under my proposal, a Supreme Court justice, after 18 years, would go onto the Federal Court of Appeals, so there’s no reason to believe they would be using this as an addition for something else. [That] too much now depends on the accident of history is when vacancies occur. Richard Nixon had four vacancies to fill in his first two years as president. Jimmy Carter had no vacancies to fill in his four years as president. DESVARIEUX: And now we’ll have to wait and see if President Obama can make his third appointment in his eighth year of office. All right Professor Erwin Chemerinsky, thank you so much for joining us. CHEMERINSKY: It’s my pleasure, thank you for having me on. DESVARIEUX: And thank you for joining us on the Real Capitol Hill.


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