Berkeley Law dean discusses Supreme Court’s last term and future

Cakes for gay weddings, tires for church playgrounds and the Trump administration’s travel ban were up for discussion at an event Monday headlined by Erwin Chemerinsky, dean of the UC Berkeley School of Law, who shared his views on the most recent term of the U.S. Supreme Court.

At the discussion — hosted by Wilmer Cutler Pickering Hale and Dorr LLP — Chemerinsky identified the confirmation of Justice Neil Gorsuch as the defining moment of the high court’s last term. Chemerinsky opined that Gorsuch is going to be a very conservative justice — more conservative than his predecessor Justice Antonin Scalia — and Gorsuch “seemed not just to signal it but advertise it at the end of the term.” Chemerinsky named a number of cases in which Scalia sided with liberal justices, but said he couldn’t identify any areas in which Gorsuch was likely to do the same.

Then, provoking murmurs through the room, Chemerinsky added, “Remember, he’s 49 years old. If he retires at 90, when John Paul Stevens retired, he will be a Supreme Court justice for 41 years, until the year 2058.”

The wry Chemerinsky also provoked laughter on several occasions, employing his professorial sense of humor with advice geared to the many attorneys and law students in the room: “Kennedy was in the majority in 97 percent of all the court’s decisions. If you have a case before the Supreme Court, my advice to you is to make your brief a shameless attempt to pander to Anthony Kennedy. Put Anthony Kennedy’s picture on the front.”

Though it is officially the John Roberts court, “this really is the Kennedy court,” Chemerinsky said, and the potential impact of his rumored retirement cannot be overstated. If a conservative justice was replaced during President Donald Trump’s tenure, the balance of the court would be little changed. But if Kennedy were replaced with a conservative appointee, Chemerinsky said, it would mean “a dramatic shift.”

Since 1960, 78 has been the average age at which Supreme Court justices have left the bench, he noted, but today the court has three justices aged 78 or older: Ruth Bader Ginsburg just turned 84, Kennedy will soon be 81, and Stephen Breyer will be 79 in August.

“I first met Justice Ginsburg in 1986 when she was on the D.C. Circuit, and she was frail in appearance then,” Chemerinsky said, sparking another round of laughter. “I’ve got to believe Ginsburg and Breyer left instructions for their clerks: If anything happens, prop them up and keep voting.”

Chemerinsky named the Trinity Lutheran case, the case of a baker who refused service for a gay wedding, and the Trump administration’s travel ban as some of the most significant questions the court has been weighing.

InTrinity Lutheran Church of Columbia Inc. v. Comer, 582 U. S. ____ (2017), a church sued the state of Missouri for denying the church’s school participation in a program that funded playground surfaces made from recycled tires. Missouri responded that it wanted to avoid violating the First Amendment by giving aid to a religious institution, Chemerinsky explained, but the court explicitly rejected that argument, with Roberts saying it was “odious” to deny religious institutions the kind of aid that goes to secular institutions.

Justice Sonia Sotomayor issued a forceful dissent which she read from the bench, calling the majority’s decision a dramatic, monumental shift in separation of church and state. “I think here what Justice Sotomayor was concerned about is something we all should be worried about,” Chemerinsky said.

“Never before in American history has the Supreme Court held that the government is constitutionally required to give a form of aid to a religious institution. Any state program that gives aid to secular private institutions that doesn’t give it to religious institutions, there’s now going to be a lawsuit challenging it.”

In the pending case Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, 16-111 (U.S., filed July 22, 2016), a Colorado baker declined to create a cake for a same-sex couple’s wedding, saying that it would violate his religious beliefs.

“The question is, does Justice Kennedy care more about his legacy with regard to protecting gays and lesbians, or more about his legacy in regard to religious freedom?” Chemerinsky asked, because the two were in opposition in this case. No justice in history has done more to advance the rights of gays and lesbians than Kennedy, Chemerinsky said, but he has always been with conservatives on questions of religion.

“I think Justice Kennedy is going to be concerned about opening the door that people can discriminate against others just by claiming religious belief,” Chemerinsky said. “After all, what if it wasn’t a cake for a gay couple? What if it was a cake for an interracial marriage, or dealing with women? You can go on and on and on. ... My hope is Kennedy will say that there’s a compelling interest in stopping discrimination.”