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Chemerinsky: Kennedy key to Supreme Court

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Noted constitutional scholar Erwin Chemerinsky shared his thoughts Friday on two of this year's most high profile U.S. Supreme Court decisions, as well as how the presidential election could shape the future of the high court.

Chemerinsky, the founding dean of the University of California, Irvine School of Law, spoke to a Thomas Jefferson School of Law audience in a program hosted by the school's Center for Law and Social Justice.

He said the Supreme Court, under Chief Justice John Roberts, is taking more than 50 percent fewer cases than its predecessors. In its third term, which ended in June, the Roberts court decided just 67 cases.

For much of the 20th century, the high court typically ruled on more than 200 cases annually and, as late as the 1980s, it was averaging 160 cases, according to Chemerinksy.

"It has enormously important implications," he said. "More major legal issues go a longer time before being resolved. More conflicts among the circuits in the state go a longer time before being settled.

"For attorneys, it's much harder now to get a cert petition granted."

While its case load has declined, the length of the court's opinions have increased, causing Chemerinsky to quip, "I have a new campaign that I'd hope you'll join me in: Word and page limits should be imposed on Supreme Court opinions."

While Roberts is the chief justice, however, Chemerinsky said the current court is defined by Justice Anthony Kennedy.

"If it's an issue defined by ideology," he said, "one can just go out on a limb and say, it's going to be a 5-4 decision and Anthony Kennedy is going to be in the majority."

That proved true with the controversial gun control case, Heller v. District of Columbia, in which the Supreme Court struck down a D.C. handgun ban, 5-4, on the grounds it violated the Second Amendment.

The decision marked the first time since the amendment was enacted in 1791 that the Supreme Court found a law to be in violation of the Second Amendment.

Chemerinsky questioned the reasoning of Justice Antonin Scalia, who wrote the majority opinion. Scalia focused on the second half of the provision "the right of the people to keep and bear arms shall not be infringed," while downplaying the first part "A well-regulated militia being necessary to a free state."

"Justice Scalia talked about the need to follow the text of the constitution as a key way of judicial restraint," Chemerinsky said. "Yet, I think it's very hard to reconcile his approach with the text of the (Second Amendment). I think he can only come to his conclusion by essentially ignoring the first half of the Second Amendment.

"Isn't it Justice Scalia who always tells us that every word within a provision has to be given a meaning? What meaning does he give to the first half of the second amendment?"

Chemerinsky also said he thinks the decision is an open invitation to litigation, mainly because in the majority opinion, Scalia never specified what the standard of review is and what the level of scrutiny is to be used in regard to this right.

Chemerinsky also discussed the Boumediene v. Bush case, in which the high court ruled detainees at Guantanamo Bay were allowed to have their cases heard in federal court.

The government was trying to suspend habeas corpus to the detainees on the based on their classification as enemy combatants.

"At the end of his majority opinion, Justice Kennedy wrote eloquently, the constitution and the rule of law have to be adhered to even in a time of crisis, even during the war on terror," Chemerinsky said.

The UC Irvine law school dean said the upcoming presidential election will determine if the court becomes more politically conservative or if it stays ideologically the same.

The two oldest justices -- John Paul Stevens (88 years old) and Ruth Bader Ginsburg (74) -- are both left-leaning judges, while three of the youngest are all under 60, including the 54-year-old Roberts.

"If you're politically conservative, this is a court you should rejoice over," Chemerinsky said. "If you're politically liberal, you should be glad the court's deciding only about 67 cases a year."

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