"Even if we had held the dinner in the law-school building, no one would have had a constitutional right to disrupt the event...."

Writes Erwin Chemerinsky, in "No One Has a Right to Protest in My Home/The difference between a private yard and a public forum," an Atlantic article, illustrated with a drawing of a conventional suburban house.

Is it about the sanctity of the home or not?

The dinner, which was meant to celebrate graduating students, was obviously disrupted.

The private family home is an emotionally compelling topic, but as you can see, it's not crucial to Chemerinsky's power to shut down the student who wanted to deliver a speech.

Some commentators have criticized my wife for trying to get hold of the microphone. Some have said that I just should have let the student speak for as long as she wanted. But in all of the dinners we have held over more than 15 years, not once has anyone attempted to give a speech. We had no reason to change the terms of the dinner to accommodate someone from an organization that put up anti-Semitic images of me....

Is he suggesting that he might have accommodated a speaker with a more pleasing viewpoint? 

"According to FIRE Campus Advocacy Rights Director Alex Morey, under the First Amendment, Chemerinsky’s 3L dinner is considered a limited public forum..."

"... in which the government, or individual or group in charge of the forum, can open up the forum for speech in any way they decide. Morey said Chemerinsky and his wife, Catherine Fisk, opened up a forum and were able to determine its limits in the case of the 3L dinner.... 'This is a situation where students have to recognize that yes, they have First Amendment rights, but they also know those rights come with certain specific limitations,' Morey said... 'Schools should exact some kind of punishment on students who engage in misconduct, but I think that some level of understanding can be given when students are trying to exercise their First Amendment rights in good faith but are still learning how to do so,' Morey said. 'It’s a delicate balance, but we hope Berkeley can figure out the right way to find that balance.'"

From "FIRE calls Chemerinsky 3L dinner limited public forum, says free speech has limitations" (The Daily Californian/Berkeley's News)

Another look at that Berkeley dinner party violence.

I'm reading "At Berkeley, a Protest at a Dean’s Home Tests the Limits of Free Speech/Pro-Palestinian supporters disrupted a dinner for law students. There was a tussle over the microphone and conflicting claims of harm" (NYT).

In a viral video, Erwin Chemerinsky, a noted constitutional scholar, can be seen shouting "Please leave our house! You are guests in our house!" as a third-year law student, Malak Afaneh, interrupted the event on Tuesday, speaking into a microphone to the students gathered in the dean’s backyard in Oakland, Calif.

Mr. Chemerinsky’s wife, Catherine Fisk, also a Berkeley law professor, can be seen with her arm around Ms. Afaneh, trying to yank the microphone away and pulling the student up a couple steps. 

"This is my home!"/"I had a home in Palestine too."

I'm watching the video at "'Please leave!' A Jewish UC Berkeley dean confronts pro-Palestinian activist at his home" (L.A. Times).

The headline says "his home," but it is the home of the law school dean Erwin Chemerinsky and his wife Catherine Fisk, who is a law professor. It is their home, and is Fisk who physically engages with the person the headline calls a "pro-Palestinian activist." The "activist" is a law student, one of a large group of law students who were assembled — outdoors — for a dinner. The activist student — Malak Afaneh — is female, which may explain why it was Fisk who took the lead in attempting to oust the student from the premises. It's a very disturbing video, with the student standing her ground and calmly claiming a First Amendment right, and Fisk staunchly asserting "This is my home." 

 

"It’s not too late for the adults, like [Berkeley Law School Dean] Chemerinsky, to take control."

"But for too long they’ve given the extremists a pass, and an entirely undeserved moral legitimacy. If they want to save higher education, they’ll have to anger a lot of people they’ve never been willing to anger before."

Writes Glenn Reynolds, in "Welcome To The Party, Pal!/Erwin Chemerinsky discovers that higher education is a hotbed of antisemitism" (Substack).

On the Monday after the weekend when Elizabeth Warren and Amy Klobuchar announced their candidacy for President, is there any new evidence that the NYT has already picked a winner?

Look how the NYT home page structures the coverage this morning (click to enlarge and clarify):



I've had the tag "NYT pushes Kamala" since December 29th, when I wrote "The NYT makes its 2020 presidential choice obvious."

There are 5 women running in the race for the Democratic Party nomination — so many that I have to stop and try to remember them all. I count on my fingers and I google to check my work. And I feel that the NYT is always there to say, Don't worry, don't be confused, there's Kamala, and there's everyone else.

And I wonder about holding back the other women. The NYT can't know Kamala Harris will wow the crowds at rallies and shine at the debates. I don't think Harris, as a presidential candidate, has been tested at all, and I don't know anything about how serious antagonists will try to take her down... other than 1. She had a sexual relationship with Willie Brown and he boosted her early career, and 2. She's too much of a prosecutor to win the love of a minority group Democrats need to turn out if they're going to beat Mr. Criminal Justice Reform Donald Trump.

The big link — the one with the smiling face — goes to "THE LONG RUN/‘Progressive Prosecutor’: Can Kamala Harris Square the Circle?/Ms. Harris seemed to try to be all things to all people as a district attorney and state attorney general. Now, as she runs for president, her record faces a chorus of critics, especially on the left." The photo reappears and fills the whole screen. I see that the article is about the second thing of the 2 things I know. Is the NYT running interference for her? If you actually read the article, you'll find lots of criticism. It's not a puff piece. Excerpts:

"If we had the California republic, which is something some people in California would like, it would have a lot of leverage over Nevada that it doesn’t have now, wouldn’t it?"

"Nevada would have to be careful about what it did to California. But the situation now is different because they’re states in the union."

Said Justice Alito, at oral argument yesterday in Franchise Tax Board of California v. Hyatt (transcript). The case, discussed at SCOTUSblog, raises the question "Whether Nevada v. Hall, a 1979 Supreme Court ruling that said a state could be haled into another state’s courts without its consent, should be overruled."

Arguing for the man who sued California in Nevada, UC Berkeley law school dean Erwin Chemerinsky responded, "I think Nevada might already feel that California overwhelms it too much." But immunity isn't needed, he said, because there's still the idea of "comity," which exists in international law: "And there's no indication that that was insufficient. The reality is that this is an issue that relatively rarely arises."

Chief Justice Roberts pushed back:

Well, the remedy for the failure to accord comity at international law was recognized to be war. What remedy do the states have under your view if a state chooses not to extend comity to a sister state?

"Normally Supreme Court justices should refrain from commenting on partisan politics. But these are not normal times."

Writes Paul Butler, one of 3 lawprofs addressing the questions "Can a Supreme Court Justice Denounce a Candidate? Is it ever appropriate or ethical for a justice to announce his or her preference in a presidential election?" — asked by the NYT on the occasion of Justice Ruth Bader Ginsburg's indicating she's horrified at the idea of a Trump presidency.

I addressed the question myself last night, here, and my answer is closest to what Erwin Chemerinsky writes in the NYT. The third essay, by Stephen Gillers, rests heavily on the Code of Judicial Conduct, which doesn't apply to the Supreme Court, but, in Gillers's view, should. He cites the provision that judges should not "make speeches for a political candidate, or publicly endorse or oppose a candidate for public office" or "engage in any other political activity." I wouldn't interpret those provisions too broadly. Judging would collapse if we took "any other political activity" too seriously, since deciding cases is political, depending on what you mean by political. All Ginsburg did was answer a question in an interview. She didn't stage or appear at a political event. And her answer was a modest display of feeling: "I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president... For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that." It's almost a refusal to respond, an oh, my.

But back to Professor Butler with his "normalness" template. I'm watching that. Click my "normal" tag to follow my interest in the idea of normal. These are not normal times, so suspend the normal rules. Who's being not normal? A. The person adjudged non-normal, thus unleashing others from the obligation to be normal or B. the person claiming things are now already non-normal and thus non-normal measures can be used?

And by the way, who's more like Hitler? A or B? I don't like bringing up Hitler, but those other people started it.

Erwin Chemerinsky blames Justice Scalia for causing these law students today to put "derision and ad hominem barbs" in their legal arguments.

In a column in the L.A. Times, which cites some examples of Scalia's vivid insults.

The examples are familiar, because they are precisely what tends to appear in the news articles. If we're casting blame, we should also blame the reporters who cherry-pick Scalia's colorful phrases, for example, calling something Justice Kennedy wrote the "mystical aphorisms of the fortune cookie."

Judicial writing is usually so bland and verbose — what a deadly combination! — that we readers of court opinions do naturally perk up when we encounter something like "mystical aphorisms of the fortune cookie."

But if we were choosing what to read — like when we pick out a novel — phrases on the level of "mystical aphorisms of the fortune cookie" would seem pretty pulpy and bad. But in a legal opinion, it's something. A little air. It's overvalued. I can see how it leads students astray.

There's something to be learned from the mood boost we get when, in the slog through judicial writing, we encounter one of Scalia's insults. But legal writers who don't themselves have the luxury of sitting in judgment had better adapt the lesson to suit their position of trying to persuade judge.

Be clear and vivid, but not jerky. Attack arguments, not people. Make careful calls about language.

I've always remembered an anecdote I heard long ago, about lawyers who mulled over whether they could use the word "stupid" in a brief in response to an argument that absolutely was stupid. After much discussion, they hit upon the mot juste: "fatuous." See my point? The lesson is: Think it through. You don't have to be dull, but don't stoop. Remember the stupid/fatuous distinction.

Chemerinsky's piece doesn't get this far. It's too weighed down with contempt for Scalia. And the last sentence is weird and telling:

If legal professionals ignore Scalia's meanness or — worse — pass around his insults at cocktail parties like Wildean witticisms, they'll encourage a new generation of peevish, callous scoffers.

Where are these cocktail parties with people who fancy themselves Wildean expressing admiration for Antonin Scalia? In the law school environment I know, I hear peevish, callous scoffing at Justice Scalia.

The mere mention of his name — said in a particular tone — is treated as a chuckle-worthy barb. My students frequently show that they've been encouraged to peevishly scoff at Scalia. In class, there will be occasions where I've put a student in the position of having to explain something Scalia has written, and he will begin, dismissively, "Well, it's Scalia," and the class will titter.

"All who planned, all who implemented, all who carried out the torture should be criminally prosecuted. How else do we as a society express our outrage?"

"How else do we deter it in the future—except by criminal prosecutions?" said law professor Erwin Chemerinsky, recommending the prosecution of law professor John Yoo, who co-authored the Office of Legal Counsel memo that supported the interrogation techniques criticized as torture in Senate Intelligence Committee’s report.

The Federal Torture Act defines torture broadly, as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering…upon another person within his custody or physical control.”

Yoo [has written] “I believed that the federal law prohibiting torture allowed the CIA to use interrogation methods that did not cause injury—including, in extraordinary cases, waterboarding—because of the grave threat to the nation’s security in the months after the 9/11 attacks.” He added that he was “swayed by the fact” that he believed “the CIA would use the technique only on top Al Qaeda leaders thought to have actionable information on pending plots.”

I'm not a criminal law expert, so help me out here. This issue is specific intent, right?

"Americans’ willingness to accept the Supreme Court’s mystical role is partly a symptom of disappointment in our own democratic capacities."

"Congress is the most directly representative body of the federal government, and almost no one sees it as having principled authority or moral charisma. Hoping that the Supreme Court will make us better than we can otherwise be, better than our own representative institutions, is neither self-respecting nor very likely to succeed."

Writes lawprof Jedediah Purdy in a very layperson-accessible presentation of the progressive case against judicial review. I think he's quite wrong, by the way.

Expect to see much more of this sort of thing in the press as Erwin Chemerinsky's book "The Case Against the Supreme Court," hits the market this September. From the book's description at Amazon:

"It May Already Be Too Late to Confirm a Replacement for Ruth Bader Ginsburg" is a silly title that isn't even trying to say what this TNR article is about.

Not long ago, lawprof Erwin Chemerinsky and others were pressuring Justice Ruth Bader Ginsburg to heave herself out of her seat on the Supreme Court to give President Obama the opportunity to replace her, but no point now, according to Simon Lazarus and Tom Donnelly at The New Republic, in a piece with the silly title "It May Already Be Too Late to Confirm a Replacement for Ruth Bader Ginsburg."

I'm saying "silly" because the fussy accuracy consciousness of the first half of the title turns into blatant inaccuracy paired with the second half of the title. As long as the United States in its current form, under our Constitution, persists, it's never too late to confirm a replacement for Ruth Bader Ginsburg. Whenever Justice Ginsburg's seat becomes available, some President will nominate someone who will be confirmed by the Senate.

What it "may" already be too late for is what the Lazarus-Donnelly article means to tell us about, which I don't have to read their article to know. It's too late for President Obama to nominate the kind of Supreme Court Justice he presumably wants — a solid liberal — and to get confirmation from the Senate. The November election is too close, the Democratic Party is at risk of losing the Senate, the spectacle of attempting to confirm a liberal Supreme Court nominee will put Democratic Senate candidates at greater risk, and the GOP Senators will have reason to drag out the confirmation process so that it might not even be successful.

The most interesting point that Lazarus and Donnelly make — not reflected in the silly title or in the idea the silly title is meant to express — is that keeping a left-leaning Justice off the Court is an issue that works for Republican candidates far more that getting a left-leaning Justice onto the Court could work for Democratic candidates.

Most Democratic voters simply don’t see the courts as relevant to the—mainly economic—issues they care about most....

In contrast, Republicans savor high-decibel political fights over the courts. In the short term, they see them as a way of firing up their base and burnishing their brand as defenders of the Constitution and the rule of law....

This asymmetry yields a chronic, structural disadvantage that limits the options available for Democratic and progressive leaders, when battles flare in the ongoing war over the courts. 

This is an amusing concession that liberals need to do their court appointments when elections aren't too close. It's Democrats and not Republicans who want to avoid accountability for judicial appointments.

But Lazarus and Donnelly imagine — or purport to imagine — that "Democrats and progressives" can "transform the politics around the courts" — that is, make voters get excited about putting left-leaning Justices on the Court. Lazarus and Donnelly present a 3-point plan to accomplish this transformation:

1. Make people see that that liberal Supreme Court Justices will help them economically. That sounds really complicated to me. I doubt if the proposition is true, and what's the argument that it is?

Since June 2008, Senate Judiciary Committee Chair Patrick Leahy has held recurrent hearings designed “to shine a light on how the Supreme Court’s decisions affect Americans’ everyday lives,” showcasing victims of decisions detrimental to employment safeguards, retirement security, consumer protection, health care coverage, and securities fraud protections. And in the wake of the Court’s recent decision in McCutcheon v. F.E.C., which struck down long-established limits on aggregate campaign contributions by wealthy donors, Leahy and Senate Rules Committee Chair Chuck Schumer announced joint efforts to spotlight how “five justices once again have decided to rule on the side of moneyed interests,” beginning with former Justice John Paul Stevens’s high-profile testimony last week before the Senate Rules Committee. Most visibly, Senator Elizabeth Warren, leader of the Democrats’ populist wing, has begun to tie the courts to her larger economic message, warning progressives about “the corporate capture of the federal courts.” These are steps in the right direction, but thus far, these limited probes that have barely registered with the media or the public. 

Patrick Leahy shining a light somehow doesn't get media attention. I'm sure the media would help with the liberal-judge-appointing agenda if they could, so the failure to direct the public's attention to where Patrick Leahy is shining his light is strong evidence that Step 1 doesn't work too well.

2. Democrats and progressives should scare people about the consequences of allowing right-leaning judges to get their hands on left-leaning legislation like the Affordable Care Act. They need to warn people that "radical" theories like federalism, "[o]nce pie-in-the-sky academic musings," now get serious respect from Supreme Court Justices.

Speaking of pie in the sky... picture a liberal political candidate trying to alarm citizens about the idea that the Constitution gives limited enumerated powers to the federal government and reserves power to the states. Speaking of things confined to the academy! You can make intra-law-school folk nod their head at the notion that federalism is dangerous, but in normal political speech, even Democratic Party candidates assure us of their respect for the role of the states in our constitutional scheme.

3. Convince people that left-leaning constitutional interpretation is actually what the Constitution means, not simply what lefties like. Lazarus and Donnelly admit that Democratic politicos "cede the legal high ground to their Republican adversaries." The remedy is supposedly to roll out legal academics to inform the public of the theories that support the results liberals like. Supposedly, Senator Leahy is leading they way by pointing out that the decisions he doesn't like are wrong as a legal matter. And Obama sometimes throws rhetoric into his speeches about "the enduring strength of the Constitution," so there's that. And there are those law professors who've been working for years writing material that "demonstrates that the Constitution’s text and history often point in progressive—not conservative—directions." Roll those guys out. (I'm saying "guys" because Lazarus and Donnelly name 5 law professors and they're all guys, so I thought I'd insert some War-on-Women dissonance.)

Well, left-leaning politicos really should try to do this. They have ceded the high ground to conservatives, but I think the liberal constitutional law material doesn't play very well in common political discourse, and for too long the go-to liberal argument has been law is just politics and it's all about outcomes. If lefties abandon the all-about-politics meme and commit to taking legal arguments seriously and to demonstrating the soundness of their interpretation, they'll be taking quite a risk. As a law professor, I'd love to see it. I'd have some great blogging material.

But, honestly, I think the actual politicians know they can't operate on that level, AKA "the high ground." Still, I'd love the opportunity to poke at them and try to topple them as they posture and pose up there.

Erwin Chemerinsky leans heavily into Ruth Bader Ginsburg: She "should retire."

The influential dean of the UC Irvine School of Law puts his weight into the Ginsburg-must-retire movement.

It is necessary — don't you know? — for the over-aged woman to step aside. For the good of liberals.

Hey! What about Hillary?! This completely overlaps with the liberal interest in convincing Americans that Hillary is not too old to be President. I Googled "Hillary is too old" and got "[a]bout 56,900,000 results," including a column in today's USAToday titled "Is Hillary too old for 2016?"

Shouldn't Chemerinsky, et al., be conveying their message to the venerable Ginsburg in a more dignified behind-the-scenes manner? Or is that known to have failed? Or is there some other message — for Us the People — to be absorbed for some reason I'm missing?

Does Chemerinsky have anything new to say — anything that doesn't make the pressure on Ginsburg even more unseemly? Her birthday just came up a couple days ago, and she hit 81. Last year was the landmark 80. 81 is not special, other than to be — yikes! — even older than 80. Oliver Wendell Holmes, Jr. and John Paul Stevens both served until they were 90.

Is the 90 mark only for men? This would be the "war on women" if the President were a Republican. But the President is a Democrat, so it's Step aside, old lady.

[O]nly by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values....

Chemerinsky frets about the Democrats' losing the Senate this fall, and Ginsburg's retiring in June, he assumes, will give Obama the power to pick "virtually anyone he wants" for the Court. Filibuster is unlikely, Chemerinsky informs us, and anyway, the Democrats have the power to eliminate the filibuster for Supreme Court Justices. They've already eliminated the filibuster for the rest of the federal judiciary.

Chemerinsky doesn't touch upon the political repercussions of such a drastic and obvious move, but he can't be so shortsighted and judge-focused that he doesn't notice. Is he so pessimistic about the Democrats in the fall elections that he thinks they might as well throw their power around this summer while they still have it?

"This is a case about the right to peacefully protest on a fully open public road, in a designated protest zone..."

Erwin Chemerinsky — the UC-Irvine law school dean — argued in the Supreme Court yesterday. His client, John D. Apel had been banned from protesting within Vandenberg Air Force Base (in an area set aside for protests) after convictions for vandalism and trespass.

But Justice Antonin Scalia said the question before the court did not involve the First Amendment.

“You can raise it,” he said, “but we don’t have to listen to it.”..

Later, Justice Kennedy said: "You have a First Amendment argument... I understand that. But let’s just concentrate on the property ownership.” And Scalia said: “You keep sliding into the First Amendment issue... We’re only interested in whether the statute applies."
 
The Court is reviewing a 9th Circuit opinion that said that the federal statute under which Apel was convicted didn't apply to the situation in which the feds had given some public access to the military base (which they'd done to give access for protests).

ADDED: The wording of the first sentence of the linked report (at the NYT) made me think Apel was not actually on the base but only near it: "John D. Apel... was convicted of breaking federal law by entering an area set aside for protests near the main entrance to Vandenberg Air Force Base." Near the main entrance — you'll see if you keep reading — was on the grounds of the base, but it was "an area open to the public on the other side of a painted green line that separates the closed part of the base from the Pacific Coast Highway."

"California Jury Convicts 10 Muslim Students of Interrupting Campus Speech."

The Chronicle of Higher Education reports:

The students interrupted a February 2010 speech by Michael Oren, the Israeli ambassador to the United States, by taking turns standing up and shouting their objections to Israeli-government policies...

Both prosecutors and lawyers for the defendants said they were protecting the principle of freedom of speech. The prosecutors accused the students of deliberate censorship, while the students' lawyers argued that their clients were conducting a common campus protest and should not have been prevented from expressing their views....

The protest took place at the University of California at Irvine. Erwin Chemerinsky, the dean of the law school there said it was a "terrible mistake" to prosecute the students. But he's also written that it does not violate free speech rights to ban the disruption of a speech:

[T]here are now posters around campus referring to the unjust treatment of the "Irvine 11" and saying they were just engaging in speech themselves. However... [t]he government, including public universities, always can impose time, place and manner restrictions on speech. A person who comes into my classroom and shouts so that I cannot teach surely can be punished without offending the 1st Amendment. Likewise, those who yelled to keep the ambassador from being heard were not engaged in constitutionally protected behavior.

Freedom of speech, on campuses and elsewhere, is rendered meaningless if speakers can be shouted down by those who disagree. The law is well established that the government can act to prevent a heckler's veto -- to prevent the reaction of the audience from silencing the speaker. There is simply no 1st Amendment right to go into an auditorium and prevent a speaker from being heard, no matter who the speaker is or how strongly one disagrees with his or her message.

Do you think Dean Chemerinsky would be impressed by the argument that Oren was an outsider who made an antagonistic deliberate transgression on a community?

Prof. Chemerinsky says Justice Ginsburg "has in her power the ability to prevent a real shift in the balance of power on the court."

"On the other hand, there's the personal. How do you decide to leave the United States Supreme Court?"

Wow! How much of this kind of moral pressure is being applied to the venerable Justice?

Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

Abortion and affirmative action. Abortion and affirmative action. That's the fixed point in constitutional law for a lot of people: it must work out in favor of abortion and affirmative action.

[S]ome on the left say ... Ginsburg needs to put self-interest aside and act for the good of the issues they believe in, Harvard law professor Randall Kennedy wrote recently. Kennedy said 72-year-old Justice Stephen Breyer should leave, too....

Get out, you selfish oldies — say some on the left — Obama needs to appoint some liberal ideologues before its too late!

David Garrow, a Cambridge University historian who follows the court, said Ginsburg's situation points to an institutional problem for the court, "the arguably narcissistic attitude that longer is better."

Narcissist!

Justices sometimes look at electoral projections when considering retirement, he said, adding that Ginsburg probably still could decide to retire next summer if Obama's electoral prospects seem shaky.

The rest of the article is a history lesson about how waiting too long doesn't work. Earl Warren, LBJ, Richard Nixon, Warren Burger and all that. The message is clear. The liberal media want Ruth Bader Ginsburg out now.

I know that sounds mean, but it's not me saying it. I'm just paraphrasing for clarity.

They say that 20-foot cross that the ACLU objects to was a gift from Woody Allen.

What a funny world we live in!

The ACLU of New Jersey threatened legal action against the Neptune school district after an attendee at last year’s graduation ceremony took offense to the building’s religious symbols and Christian-based references -- among them a 20-foot white cross above the auditorium’s entrance. The ACLU asked the school to remove or cover up the cross and three other religious signs, arguing their visibility during a public school event is a First Amendment violation....

The Camp Association said it could not cover the cross, said to have been a gift from movie director Woody Allen, who used the auditorium during shooting for the 1980 film "Stardust Memories."

Interestingly, if this case goes to court, the key Supreme Court precedent will be Van Orden v. Perry, the case about the 10 Commandments monument on the Texas State Capitol grounds, and that monument supposedly originated as a promotion for the Cecil B. de Mille movie "The Ten Commandments." From the oral argument in Van Orden:

Justice O'Connor: How did this monument get there? Was it in... is it true that it was put in as a result of promoting a movie about the Ten Commandments?

Mr. Chemerinsky: The record is unclear as to that. There are certainly many indications in the popular press that Cecil B. DeMille together with his movie, The Ten Commandments, worked with the Friends of Eagles to have these monuments put around the country. But there is nothing in the legislative history that links this particular monument to that.

And the cross is only said to be a gift from Woody Allen.

Where do all the religious stories come from? If there were movies back in Biblical times, what movie directors would be wandering around in those old Judeo-Christian stories? Anyway, I tried to find a YouTube clip showing the cross in "Stardust Memories," but I can't remember that movie well enough to know what scene it's in. I did run across this clip from Woody's "New York Stories" that has a little Larry David performance in it. And here's Larry David saying "Religion should be made fun of, it's quite ridiculous, isn't it?... If I really believed that stuff, I'd keep it to myself, lest somebody think I was out of my mind":

What will happen when the requirement that people buy health insurance is challenged in court?

There's no chance that it won't be challenged, is there? David Savage digs up a quote from the Clinton era: Requiring people to buy health insurance "would be an unprecedented form of federal action. . . . The government has never required people to buy any good or service as a condition of lawful residence in the United States."

Savage tries to assure us:

Many constitutional-law experts ... predict that even a conservative Supreme Court would uphold a federal requirement that individuals buy health insurance. The justices have said that Congress has wide latitude to regulate economic activity, and health insurance qualifies as that.

Although the mandate to buy insurance may well face a constitutional challenge, "I don't think this is a close call," said Erwin Chemerinsky, dean of the UC Irvine law school. He said that individuals' refusal to buy insurance could have an effect on the market, and the Supreme Court has said that Congress may regulate actions that affect a market.

That, for you nonlawyers, is a discussion of whether Congress has an enumerated power to support the requirement. The power referred to is given by the Commerce Clause. That says absolutely nothing about whether it might violate the constitutional rights of the individual.

As an example, [Chemerinsky] cited the court's decision four years ago that upheld federal restrictions on home-grown marijuana in California even though two women who used medical marijuana at home argued that they did not intend to buy or sell it.

A 6-3 majority said Congress may "regulate activities that substantially affect interstate commerce," and at least in theory, the home-grown marijuana could have been sold in the illegal drug market.

Yes, and the Supreme Court, after resolving the Commerce Clause question, remanded the case to consider whether there was a substantive due process right to use marijuana when it is medically necessary. That claim of right ultimately failed, but the point is that it's not enough for Congress to have an enumerated power to pass a law. It must also avoid violating individual rights. Savage's quoting of Chemerinsky about the commerce power makes it hard for the average reader to see what is an elementary legal matter — one that liberals ordinarily like to spotlight.

Moreover, the Commerce Clause question is quite a bit more complicated than Dean Chemerinsky makes it sound. The marijuana growers were engaging in an activity — making a product for which there is a big, regulated market. In this new case, we'd have Congress regulating people for their inaction. What other case is like that? Congress can "regulate activities that substantially affect interstate commerce"? Where's the activity? It's inactivity! And Supreme Court cases have limited Congress's power where the activity in question is noncommercial. Isn't the failure to buy insurance noncommercial?

A legal challenge to the healthcare mandate may be several years away. To challenge this requirement in court, a taxpayer would have to face a penalty, and the pending legislation does not phase in the penalties until after 2013.

Now, wait. The economics of the entire restructuring of health care is balanced on this individual mandate. I don't know how well-balanced it is, but the economics are shot to hell without the individual mandate, right? What happens if it turns out that the individual mandate is unconstitutional? Does the whole system go down?

Under Section 255 of the bill ("Severability"):

If any provision of this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of the provisions of this Act and the application of the provision to any other person or circumstance shall not be affected.

In other words, by its own express terms, if part of the Act is struck down, everything else survives. So if we find out, some day, that the individual mandate to buy insurance is unconstitutional, we're still stuck with all the other parts of the plan. Then what happens?

Has anyone promoting this bill even attempted to calculate the economics with the individual mandate excised? Are we going to have the whole lumbering system cranking into operation for years before we find out whether the the individual mandate is unconstitutional? Or is that the scheme? The individual mandate is too big to fail, and the courts will cave.

Chemerinsky's idea of "Enhancing Government."

Jonathan Adler points to Jon O. McGinnis's review of Erwin Chemerinsky's new book "Enhancing Government: Federalism for the 21st Century. The book sketches out the liberal position on the various federalism issues, and this is the position that — McGinnis aptly asserts — you can expect Obama-appointed Supreme Court Justices to take.

Chemerinsky argues (unsurprisingly) that the Constitution's enumerated powers in fact permit Congress to reach any matter it chooses to regulate. What is left to the states is what Congress deigns to leave to the states. On questions of federal court jurisdiction, Chemerinsky would give the party he would like to advantage — the civil plaintiffs and criminal defendants who assert federal rights — their preference whether to litigate in state or federal court. And Chemerinsky would make it hard for federal law to preempt state law, and this would preserve the regulation of business at dual levels of government, federal and state.

If voters think about Supreme Court appointments at all, they usually focus on the scope of individual constitutional rights (especially abortion). I wish people would pay attention to these federalism issues. As McGinnis writes, the liberal position on federalism is very widespread and elaborately worked out in the legal academy. The Burger and Rehnquist Courts were somewhat successful in keeping this thinking from migrating into the case law. Chemerinsky's idea of federalism is not simply expanding federal power at the expense of the states. It's more complicated (and more policy-oriented in its complication). Even though this approach allows Congress to regulate anything, it preserves state regulation where Congress has not expressly preempted it, and it preserves the power of state courts when a litigant with a federal law right prefers state court. So the liberal idea of "Enhancing Government" is about expansive federal regulatory power combined with enthusiasm for regulating business and enforcing federal rights.

Maybe you like that idea. I'm just saying: Think about it.

"Do not create a legal writing program, moot court competitions, student-edited law reviews, clinics, or any other co-curricular offerings."

Gordon Smith offers some surprising advice for Erwin Chemerinsky on how to structure the new law school at UC Irvine. The idea is to stress classroom teaching:

Allowing practicing lawyers to drive educational reforms is what got us into this mess. If you feel the need to teach "skills," develop an externship program, which will expose students to real legal problems and forge relationships between your school and potential employers.

That would shake things up. It steps on a lot of toes. But UC Irvine doesn't have toes yet.