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Raphael J. Sonenshien, left, and Erwin Chemerinsky. Photo by Kelly Lacefield

The Future of Constitutional Law

Lecture Focuses on The Roberts Court, Sonia Sotomayor

A lecture by Erwin Chemerinsky, dean of the Donald Bren School of Law at UC Irvine and a renowned scholar in constitutional law and federal civil procedure, was presented last month during Constitution Week activities at Cal State Fullerton.

Chemerinsky's “Constitutional Law: Principles and Policies” is considered to be the leading introduction to constitutional law and is praised by legal educators on the left and the right. He gave the turn-away crowd in the Titan Theater a two-hour tour of the five most contentious issues likely to come up for review during the Supreme Court’s current session, including abortion, affirmative action, campaign finance reform, gun control and the separation of church and state.

The audio file (MP3, 103MB) begins with brief comments by Raphael J. Sonenshein, professor of political science and chair of university’s Division of Politics, Administration and Justice, who introduces Chermerinsky.

The following is the transcript of Chemerinsky's lecture:

Lecture Transcript

What I was asked to talk about today in connection with this Constitution Week observance is where is the Supreme Court now, where is it likely to go in the foreseeable future? So actually I'd like to divide my remarks into two parts. First, I want to talk about where is the Roberts Court on the major issues? What can you expect to see from the Court, and how will it affect your lives?

And second, I want to talk about what the Obama presidency, and especially what the confirmation of Justice Sonia Sotomayor, is likely to mean for the future of the Supreme Court and the future of constitutional law.

The Roberts Court in Context

Let me start then with the first question. How should you understand the John Roberts Court? What's it likely to mean for your lives? Well overall you should think of it as a quite conservative court. Why do I say that? John Roberts and Samuel Alito have been everything that conservatives could have hoped for and liberals could have feared.

John Roberts has now been on the Supreme Court for four terms; Samuel Alito has been there for three and a half years. Each as you know was appointed by President George W. Bush. I can identify virtually no cases in their time on the Court where Justices Roberts and Alito didn't vote in what we identify as the conservative direction. I'll give examples of that in a moment.

They almost always, when the Court is ideologically divided, side with the two conservatives who preceded them, Antonin Scalia and Clarence Thomas. Now statistics back this up. If you look at the last year of the Supreme Court, the term that began on the first Monday of October 2008 and ended on June 29, 2009, the two justices who were most often in agreement on the Court were Chief Justice John Roberts and Justice Samuel Alito.

The two justices next most often in agreement were Chief Justice Roberts and Justice Antonin Scalia. Robert and Alito voted together 92 percent of the time; Roberts and Scalia just below them. It's a powerful indication of how conservative these justices are.

Now Roberts, Scalia, Thomas and Alito are a block on one side. On the other side until now we had the block of Justices Stevens, Souter, Ginsburg and Breyer. They generally vote for what we'd identify as the liberal direction. That leaves Justice Anthony Kennedy as the swing justice.

Thinking about the Anthony Kennedy Court

I think it is proper, as you think about this Court, to understand it as the Anthony Kennedy Court. I know out of tradition and deference to the Chief we refer to it as the Roberts Court. But at least from the perspective of the lawyers who stand before the justices and read briefs to them, this is really the Anthony Kennedy Court. Again, statistics back this up.

Last year the Supreme Court decided 75 cases. The justice who was most often on the majority was Anthony Kennedy. He voted the majority 92 percent of the time. In fact in all four years that John Roberts has been chief justice, Anthony Kennedy has been in the majority more than any other justice.

Of the 75 cases, 23 were decided by a five-to-four margin. Justice Kennedy was in the majority of the five-four decisions 18 times -- more than any other justice. This, too, is not a one-year phenomenon. In every year that John Roberts has been chief justice, Justice Kennedy has been in the majority in more five-four decisions than any other justice.

A year ago, the Court decided 67 cases, 14 were decided by a five-four margin; Justice Kennedy was in the majority of nine of them, more than any other justice.

The year before that the Supreme Court decided 68 cases, 24 were decided five-to-four and Justice Kennedy was in the majority in every one of those 24 cases. I can't identify any other year more significant for five to four cases, and one justice in the majority literally every time. An Audience of One To say nothing else, this is important for the lawyers who practice before the Court. There's often the sense of appealing to an audience of one. I wrote a brief to the Supreme Court a year ago in a major Second Amendment case, about the meaning of the right to bear arms, a case I'll talk about in a bit. Most of my brief was a shameless attempt to pander to Anthony Kennedy. If I could have put Justice Kennedy's picture on the front of my brief I would have done so.

My brief was not unique among those filed in this case. This case was not unique among those of the docket. Everyone knows, the Justices know, that this is the Anthony Kennedy court. So to sense the overall ideology of the Roberts Court, you really need a sense of the ideology of Anthony Kennedy

Justice Kennedy was appointed to the Supreme Court in 1987 by President Ronald Reagan. He has been, throughout his career, before and after going on the Supreme Court, solidly conservative, although certainly not as conservative as Roberts, Scalia, Thomas and Alito. But he is definitely to the right of center, and more conservative that Stevens, Souter, Ginsburg and Breyer.

Let me give you statistics to back this up. Last term, out of 23 five-four cases, in 16 of them the Supreme Court was divided along traditional ideological lines. Roberts, Scalia, Thomas and Alito were on one side; Stevens, Ginsburg and Breyer were on the other. In 11 of 16, Justice Kennedy sided with the conservative four, and in only five of sixteen did Justice Kennedy side with the more liberal group.

In fact, if you look at all four years in which John Roberts has been Chief Justice, Anthony Kennedy sided with the conservatives about twice as often as the liberals. Given who Kennedy is, given who Kennedy always has been, there's no surprise here.

The Court’s Essential Conservatism

But what does this mean in terms of specific issues that affect all of our lives? I think to understand how the Supreme Court has changed in just the last decade it's appropriate to compare where Justice Kennedy is as the swing justice, compared to where Justice Sandra Day-O'Connor was when she was the swing justice. Or, to put it another way, I think you can understand the current Court and how the Court has changed in this decade by comparing where Justice O'Connor was, compared to the Justice who replaced her, Samuel Alito, who took her seat in January of 2006.

Let me focus on five major issues as examples, in order to give you a sense of where the current Court is, and its overall conservativism.

Abortion: The Defining Issue

Let me start with abortion. Now, I could justify it by, of the issues I'm going to talk about, alphabetically it comes first. But the reality is, at least in our recent lifetimes, no issue so is so defined as conservative versus liberal. No issue has determined the difference between Republicans and Democrats more than the issue of abortion.

In 1973, in Roe v. Wade, the Supreme Court in a seven-to-two decisions ruled that women have a constitutional right to chose whether to terminate their pregnancies. The Supreme Court said that the word "liberty" found in the Due Process Clause of the Fifth and Fourteenth Amendments includes a right to privacy.

And actually the Supreme Court had found a right to privacy as part of liberty long before Roe v. Wade. Starting in the 1920s the Supreme Court had said that privacy protects such things as a constitutional right to marriage; the right to pro-create; the right to have custody of one's children; the right to keep the family together; the right of parents to control the upbringing of their children.

In 1965, the Supreme Court had said it includes a right to purchase and use contraceptives. The Supreme Court said that laws prohibiting abortion infringe the right to privacy, that it should be left for each woman to decide for herself when human personhood begins. It shouldn't be for the state to prohibit abortions prior to viability.

By the 1990s there was a good deal of uncertainty as to whether Roe v. Wade would be overruled. A number of the justices who had been part of the Court in 1973 had left. They'd been replaced by justices appointed by Republican presidents, especially Presidents Reagan and Bush, and the thought was that these new justices would create a majority to overrule Roe v. Wade. The Partisan Divide over Abortion We now know, thanks to the papers of Justice Harry Blackmun being made public, that when the Supreme Court heard oral arguments in the spring of 1992, in a case called Planned Parenthood v. Casey, it voted five-to-four to overrule Roe v. Wade. But then, between the time of the Supreme Court's hearing and the Supreme Court's releasing of the decision Justices Anthony Kennedy changed his mind.

Up to that point Justice Kennedy had been a vote to overrule Roe v. Wade. We still don't know what caused Justice Kennedy to change his mind. Linda Greenhouse, a former Supreme Court correspondent for The New York Times, wrote a wonderful book called "Becoming Mr. Justice Blackmun."

She goes through Blackmun's papers and talks about how Justice Kennedy called Justice Blackmun and said, "I need to meet with you." And Justice Blackmun showed Justice Kennedy files of letters that Justice Blackmun received from nuns supporting his decision in Roe v. Wade.

Justice Kennedy then told the other Justices that he'd be the fifth vote to uphold Roe v. Wade. But this country, for better or worse, came that close to Roe being overruled and states being able to prohibit abortion.

The next vacancies on the Supreme Court after the Casey decision came when President Clinton got to appoint Justices Ginsberg and Breyer, strong pro-choice justices. And so in the year 2000, there was a case decided by the Supreme Court called Stenberg v. Carhart. It involved a Nebraska law prohibiting so-called partial-birth abortion. Now there's actually no medical procedure as partial-birth abortion. It's a phrase that anti-abortion groups have coined.

Nebraska law prohibited removing a living fetus or substantial part of a living fetus with the intent of ending the fetus' life. The Supreme Court five-to-four declared this unconstitutional. Justice Breyer wrote the opinion for the Court and was joined by Justice Stevens, Justice Souter, Justice Ginsberg and Justice O'Connor.

Notwithstanding the Supreme Court decision, Congress adopted the Federal Partial-Birth Abortion Ban Act. Now, the Supreme Court in the case I just mentioned, Stenberg v. Carhart said that any law prohibiting partial-birth abortion would have to have an exception to allow the procedure when it's in the health interests of the woman.

The federal law has no such exception. Three different federal courts of appeals declared the law unconstitutional based on Stenberg v. Carhart. But in April of 2007 the Supreme Court upheld the Federal Partial-Birth Abortion Ban Act. You might wonder what happened between 2000 and 2007 to cause the Court to change its mind. Did the Court find some musty history of the Due Process clause that led it to believe that it made a mistake?

No, what happened was that in January 2006 Samuel Alito was confirmed to the Court and replaced Sandra Day-O'Connor. Alito joined with Chief Justice Roberts and the other dissenters in Stenberg -- Scalia, Kennedy and Thomas -- to uphold the federal law. The Difference An Alito Makes Justice Kennedy wrote the opinion for the Court and he said, "Many women come to regret having had abortions. Therefore the state should be able to regulate abortions so as to protect them." Justice Ginsberg wrote a vehement dissent and she said, "The whole point of Roe v. Wade is that it should be for each woman to decide for herself what's in her physical and psychological best interest. It's not for the five men of the majority to make that determination."

But I think that the recent case, Gonzales v. Carhart, decided April 28, 2007, clearly signals that there are five votes on the current Court to allow almost any government regulation of abortion, up to the point of a complete ban on abortion. And I think that there are four justices on the current court that would allow the government to prohibit all abortions -- Roberts, Scalia, Thomas and Alito.

Justice Kennedy will not go as far as a ban on abortion, but he will allow almost any regulation up to that point. Now had John McCain won the election in November, and had he appointed a replacement for David Souter, almost surely that would have been the fifth vote to overrule Roe v. Wade.

Everyone expects the Justice Sotomayor will vote as Justice Souter did, to continue Roe v. Wade. But that's a right that affects people, truly the most intimate aspects of their lives, and that's where the Supreme Court is now, and where it is likely to go in the foreseeable future.

On Affirmative Action

Let me talk about a second issue concerning the Roberts Court -- affirmative action, and race more generally. In June of 2003 the Supreme Court decided a very important case, Grutter v. Bollinger. Grutter v. Bollinger involved whether colleges and universities may use race as one factor in admissions decisions to benefit minorities to achieve diversity. Grutter involved a University of Michigan Law School, and whether it could use race as one factor in the admissions decisions to benefit minorities.

The Supreme Court ruled five-to-four that colleges and universities may use race as a factor in admissions decisions. Justice Sandra Day-O'Connor wrote the opinion for the Court, joined by justices Stevens, Souter, Ginsberg and Breyer.

Justice O'Connor said colleges and universities have a compelling interest in having a diverse student body. I have been a law professor for 30 years now. I began teaching with Reginald David 30 years ago, and I taught Constitutional Law and Criminal Procedure in classes that were almost all white, and those, like this one, with a significant number of minority students.

I will tell you that the learning experience for all is vastly different in those experiences. All the years I taught at USC. And I teach Criminal Procedure, and there were African American, and Latino men in the room who could talk about being stopped in Los Angeles or Beverly Hills simply for driving while black, or driving while brown.

The reality is that without some form of affirmative action there would not be a significant representation of African Americans and Latinos in higher education, especially elite schools, today. The effects of discrimination over a long period of time require that there be race-conscious remedies. Statistics Tell the Diversity Story Lest you think this is just my hyperbole, let me give you some actual statistics. Last year in the United States, the entire country, there were 12 African Americans applying to law school with LSATs above 170 and GPAs above 3.5. Last year in the United States, in the entire country, there were 120 African Americans applying for law school but LSATs above 165.

Now, if these numbers don't mean anything to you, The University of California, Irvine, our median LSAT is 167. At Duke where I taught before coming here, the median LSAT was 168. At Berkeley, it's 169. Harvard, Yale, Columbia, it's over 170.

This is a direct manifestation of historic and continuing inequalities in our educational system. We still live in a country where on average 20 percent less is spent for a black child's elementary and secondary schooling compared to a white child's elementary and secondary schooling. It's no surprise then that affirmative action remains so essential.

We saw that here in California. In 1996, California voters adopted Proposition 209 banning discrimination and preferences in education, employment or contracting based on race or gender. In the first five years after this went into effect, 1997 to 2002, if you compare the leading private and public law schools you see the effects of Proposition 209. You see the importance of affirmative action.

At USC Law School, a private one, over 11 percent of the students were African American. At Stanford Law School, also a private university, over nine percent of the students were African American. At the University of California Berkeley Boalt Hall School of Law, just over three percent of the students were African American. And at UCLA Law School, just over two percent of the students were African American.

I last taught at UCLA Law School. I often filled in there in the spring of 2003. I was teaching an upper-level course on the federal court system. I had about 100 students. Now when I taught at UCLA students would always come up to me and say, what's the difference between USC and UCLA? And I said, "There's no diversity here. There's not a single black student in the class, hardly any Latinos."

And one of them responded when I said this saying, "I'm a third-year student about to graduate and I yet to be in any class in my three years of law school where there's a black student in the room." This is in Los Angeles, the most diverse city in the country, maybe the world, in the spring of 2003.

Affirmative Action and Justice Kennedy

That's is why it's so essential that there be able to be affirmative action programs, like the Supreme Court upheld in Grutter v. Bollinger. But Grutter was a five-to-four decision, as I said. Justice O'Connor ruled, joined by Stevens, Souter, Ginsburg, and Breyer. Justice O'Connor is no longer on the Court. Justice Alito has replaced her, and there's every reason to believe that Justice Alito has a different perspective.

Certainly Justice Kennedy as the swing justice has a different perspective. Did you know that Justice Kennedy has never voted to uphold any affirmative action program in any context in his now 22 years on the United States Supreme Court?

We saw the effect of this change in the Court and perhaps have a glimpse of the future under the Roberts Court in a decision two years ago, parents involved in community schools for Seattle School District Number One. Two cases came to the Supreme Court together. One was from Louisville, Kentucky, and the other was Seattle, Washington.

Both saw substantial segregation in their public school systems. So both decided to develop a program where one factor among many in assigning students to a school would be race. The goal was to achieve desegregation.

Roberts is Blind to Government’s Interest in Diversity The Supreme declared this unconstitutional. Chief Justice Roberts wrote for the Court. He was joined by the other four most conservative justices -- Scalia, Kennedy, Thomas and Alito in finding that diversity is not a compelling government interest.

Now here the Court was dealing just with elementary and high schools, Grutter was college and law schools, but I don't think Chief Justice Roberts would see any distinction. He would say that diversity is not a compelling interest.

Chief Justice Roberts said the government should only be able to use race if you're sure that no race-neutral alternative is perceived. In other words, for Chief Justice Roberts and the majority there's no difference between the government using race to subordinate a minority and the government using race to achieve desegregation. Previously the Supreme Court deemed all the difference in the world between those.

Chief Justice Roberts, writing the part of the opinion joined by Justice Scalia, Thomas and Alito, said that the Constitution requires colorblindness. Of course, that's not what the 14th Amendment says. The 14th Amendment refers to equal protection of the law.

If the Constitution is interpreted as requiring colorblindness then any effort of affirmative action, any program to achieve diversity would be declared unconstitutional. And that could very well be on the horizon in light of the changing composition of the Court.

Future of Campaign Finance Laws in Doubt?

The third example that I would give you concerns campaign finance laws. You might have read in the newspaper that just last Wednesday the Supreme Court heard a major case concerning campaign finance regulation. The case is called Citizens United v. Federal Election Commission.

It was unusual that the Supreme Court heard it on September 9th. Usually the justices don't come back from their summer recess until the first Monday in October, which would be October 5. But here the Court came back early to decide a key issue with regard to the First Amendment in campaign finance.

A little bit of background here. In 1907, Congress passed a law that prohibited corporations from contributing money to candidates for federal elective office. This was the result of the abuses that were seen and developed, especially near the presidency of Theodore Roosevelt. In the 1940s this was extended to say that unions can't contribute money to candidates for federal elective office.

Now, corporations and unions can hire fancy, clever lawyers, and they came up with a way to circumvent this. The corporations and the unions would simply take out the ads themselves, especially on television and radio, urging the support or defeat of candidates for federal elective office.

Lifting the Ban on Corporate Campaign Advertising In 1974 Congress adopted a statute that said that corporations and unions can't take out ads on television and radio endorsing or posing specific candidates. The Supreme Court also said it was constitutional for Congress to limit the amount that anybody could contribute to a candidate for federal elective office. The concern is that large contributions risk corruption and the appearance of corruption.

Well, as I said, corporations and unions have clever lawyers, and they came up with a way to circumvent this. Corporations and unions would just run issue advertisements. It would never come out and say, "Vote for Mary Smith. Vote against John Jones." They'd talk about a particular issue and then attack the candidate or support the candidate for his or her views on that issue.

Congress, in 2001, in the McCain-Feingold law, formerly known as the Bipartisan Campaign Finance Reform Act, said that corporations and unions should not be able to run issue ads for or against an identifiable candidate on television or radio 30 days before a primary election or 60 days before a general election.

In 2002, in a case called McConnell v. Federal Election Commission, the Supreme Court upheld this as constitutional. Justice O'Connor broke the opinion for the Court, joined by Justices Stevens, Souter, Ginsburg and Breyer. In fact, the Supreme Court has consistently upheld restrictions on corporate spending in election campaigns.

Why? Well, to some extend it's about protecting the shareholders. Corporations exist to make money for the shareholders that own them. It would seem inappropriate for a corporation to spend a shareholder's money to elect or defeat a candidate when the shareholder might disagree with the corporate position.

Corporations Stand To Gain Considerable Influence

There's also a real concern about the tremendous wealth that corporations have in our society, and the way in which it can distort election campaigns. In the year 1990, in a case called Austin v. Michigan Chamber of Commerce, the Supreme Court in opinion by Justice Thurgood Marshall said that state and local governments could prohibit corporate spending in election campaigns or limit to even the playing field to be sure that corporate wealth doesn't drown out other voices.

I think that there are now five votes on the Supreme Court to overrule those decisions. To say at the very least that corporations can spend unlimited amounts of money to get the candidate of choice elected or defeated. Likely five votes to say that corporations should be able to contribute money, and as much money as they want to the candidates of their choice, and probably five votes, and we wont see it right now, that any limit on campaign contributions violates the First Amendment.

A case before the Supreme Court now, Citizens United, involves a political action corporation that made a movie highly critical of Hillary Clinton. And the question was, does McCain-Feingold law apply to this movie?

So now, to answer the mystery sort of like a tease as you're coming back to the 10:00 news. The Supreme Court heard oral arguments last year on this case as to whether or not the law that I described to you applies to the Hillary movie?

And everyone expected the decision to come down like a lot of cases decided by early June. But on June 29th the Supreme Court asked for briefing argument -- briefing over the summer, arguments on September 9th, on the question of whether or not the earlier decision should be overruled and whether a corporation should been seen as having a First Amendment right to spend money in an election campaign.

I've not had a chance to listen to most of the tape of oral argument from last Wednesday. Heard many accounts of it, and I think it's going to be a five-to-four decision that corporations have a First Amendment right to spend as much as they choose in election campaigns. Maybe the Court will go so far as to say that corporations have a First Amendment right to contribute to candidates. They don't need to do so to decide this case. And though I don't think they'll do so here, I think they've clearly indicated that there are five votes for the position that limits on contributions in election campaigns violate the First Amendment.

This is going to dramatically change elections in the United States -- federal, state and local elections. Corporations will be able to spend as much money as they want on TV and radio ads to get the candidate of their choice elected, and the candidate they oppose defeated.

On Separating Church and State

Let me continue going through my five examples. My fourth is separation of church and state. Here, too, I think we're likely to see a dramatic change in the law. And the effect of Alito replacing O'Connor -- Kennedy replacing O'Connor as the swing Justice. The First Amendment says that the government can make no law respecting the establishment of religion.

In 1947 when the Supreme Court said that this applies to state and local governments not just the federal government, all nine justices subscribed to a metaphor, a quote by Thomas Jefferson, that the Establishment Clause is meant to create a wall that separates church and state; a wall that's high and impregnable. But, over the last decade, the most conservative Justice on the Court vehemently disagreed that there should be a law that separates church and state.

Over the last decade Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas have said that we shouldn't separate church and state. We should allow much more accommodation of religion into government and government into religion. Their position is that the government only violates the Establishment Clause if it literally established a church or coerces religious participation.

Changing Views on Establishment Clause

I argued another case in the Supreme Court in the spring of 2005. It's a case called Van Orden v. Perry. It involved a six-foot high, three-foot wide Ten Commandments monument that sits directly at the corner with the Texas State Capitol and the Texas Supreme Court, and the issue was whether that violated the Establishment Clause? I knew going into the argument that I had no chance to get the votes of Rehnquist, Scalia, Kennedy, and Thomas because they've consistently taken a position that religious symbols on government property never violate the Establishment Clause.

In fact, in oral argument, Justice Kennedy said to me, with some anger in his voice, "If your client doesn't like this Ten Commandments monument, why doesn't he just look the other way?" And I responded by saying, "That, of course, has no stopping point because then a city could put a large Latin cross atop city hall, and say, if you don't like it, don't look at it." And of course, the violation of the Establishment Clause doesn't depend on whether people look or not. If you believe there should be a separation of church and state, then profoundly religious symbols don't belong on government property.

Now in that case, the Supreme Court, five-to-four, allowed the 10 Commandments monument. In a companion case, Supreme Court, five-to-four, disallowed the Ten Commandments monument. But the key is there are only four votes in either of these cases that say that the government violates the Establishment Clause only if it literally established a church or coerces religious participation. In fact, Justice O'Connor voted for me in Van Orden v. Perry: "We have found the Ten Commandments monument to violate the First Amendment."

Constitutional Limits on Religious Symbols Likely to Fall

But now, Justice O'Connor has been replaced by Justice Alito, John Roberts replaced William Rehnquist, and they seem to have the same views on the subject. Now I think there are five votes on the Court to say that the government violates the Establishment Clause only if it literally established a church or coerces religious participation. What's this likely to mean in all of our lives? I think there will be no constitutional limit for religious symbols on government property, and we'll likely see it this year.

There's a case before the Supreme Court, right now, to be argued next month, called Salazar v. Buono. It involves a large cross in the desert on federal land. And the question is can there be a large cross by itself on government property? The Federal District Court in Los Angeles found this as an impermissible establishment of religion. The United States Court of Appeals to the Ninth Circuit agreed. The Supreme Court granted a review.

The conventional wisdom, and I share it, is that the Supreme Court is going to overrule earlier decisions, and say that such religious symbols are permissible. I think the Supreme Court will extend this to say that the government may give aid to religious schools, parochial schools, even aid to be used for religious indoctrination, so long as the government does not discriminate among religions. I think you'll see the Court allowing much more of a religious presence even in public schools. So here, Justice Alito replacing Justice O'Connor is likely to make all the difference.

Debating the Right to Bear Arms

The fifth and final example that I will give you -- in addition to abortion, affirmative action, campaign finance, and separation of church and state -- concerns the Second Amendment. Did you know that from 1791, when the Second Amendment was adopted until June 28, 2008, not one law - federal, state, or local - had been found to violate the Second Amendment? That all changed in District of Columbia v. Heller, decided a year ago in June.

The language of the Second Amendment is an enigma. It says: "A well regulated militia, being necessary to a free state, the right of the people to keep and bear arms shall not be infringed." From 1791 until 2008, the Supreme Court had always said that the first clause of the Second Amendment defines the scope of the right to the second clause that the second clause gives us a right to bear arms, but it's for purposes of militia service. There's certainly strong evidence to support this interpretation.

The Supreme Court has always said that every word in a provision has to be given meaning. If the Second Amendment is read as creating the right of people to keep and bear arms apart from militia service, then that reads out of the provision it's first hand. That is the same as if it simply said: "The right of people to keep and bear arms shall not be infringed."

That's not what it says. Besides that, if you believe in looking to the framer's intent, James Madison did the first draft of the Second Amendment, as he did the first draft of all of the Bill of Rights. In his initial draft of the Second Amendment included a clause granting an exemption from militia service for conscientious objectors. That seems very powerful evidence that the Second Amendment was about militia service.

In fact, this wasn't the first Supreme Court case to ever interpret the Second Amendment. In many prior decisions, each and every one of them said that the Second Amendment is a right to have guns for purposes of militia service.

In District of Columbia v. Heller the Supreme Court took a brand new account. This case involved a 35-year-old District of Columbia handgun control ordinance. It prohibited private ownership, possession of handguns and imposed many restrictions on long guns.

Challenge was brought, arguing that it violated the Second Amendment. The Supreme Court, in a five-to-four decision, declared this unconstitutional. Justice Antonin Scalia wrote for the Court, joined by the other four most conservative justices, Chief Justice Roberts, Justice Kennedy, Justice Thomas and Justice Alito.

I don't know when in American history views about guns came to be so defined by liberal-conservative ideology. But it is the case in our society that generally, liberals tend to favor gun control; conservatives tend to favor gun rights. And so it shouldn't be surprising that the five conservatives on the Court took the gun rights position while the four more liberal justices took the gun control position. But those five justices are likely to mean that many federal, state and local government regulations are likely to be struck down. This is a major change in the law.

Now, I picked five examples, and I've chosen them for many reasons. I've chosen them for their importance in people's lives in our society; whether women can have abortions; whether college universities can use race as a factor in admissions; whether or not corporations have the right to spend unlimited amounts of money on campaigns; whether there be a wall that separates church and state; whether gun control laws are evolved.

Certainly, I've touched some of the most controversial issues, some of the most hot button political issues in our society. They also touch people's lives in a very direct way. And so I think through these issues you can get a sense of: Where is the current Supreme Court? What's the effect of Anthony Kennedy being the swing Justice without Sandra Day-O'Connor? Or Samuel Alito being on the Court rather than Sandra Day O'Connor?

So let me then shift to the second and final part of my remarks. What's the Obama presidency and, for that matter, the confirmation of Justice Sonya Sotomayor, what would it mean for the future of the Supreme Court, the future of Constitutional Law? Sotomayor and the Future of Constitutional Law My conclusion is that the Obama presidency, and the Sotomayor justiceship are unlikely to change the ideology of the Supreme Court, at least in the short term. Why do I say that? Think about where the vacancies are likely to come on the Supreme Court between January 20, 2009, and January 20, 2013. Or, if you think there will be a second Obama term, January 20, 2017. David Souter is already retired and been replaced by Sonia Sotomayor.

John Paul Stevens turned 89 years old on April 20 of this year. He's in good health, is as vibrant as ever, but it doesn't seem that likely he'll still be on the Supreme Court in 2013, at age 93, let alone in 2017 at the age of 97.

Ruther Bader Ginsburg turned 76 in February of this year. That same month, she was diagnosed with pancreatic cancer. The media, thankfully, reported that it was caught at the earliest stage, but maybe because she's so frail in appearance, there's always been speculation that she might step down.

Now think of the other side of the ideological aisle. John Roberts turned 54 in January of this year. If he remains on the Supreme Court until he's 89, he'll be Chief Justice into the year 2044.

Samuel Alito turned 59 on April 1st of this year. Clarence Thomas has been on the Supreme Court almost 18 years, and he's only turning 61 years old. Antonin Scalia and Anthony Kennedy are each 73 years old.

Handicapping Succession Scenarios

So, it's not likely that any of these five justices will be going anywhere in the next four or eight years - probably not in the next decade. So the vacancies for President Obama to fill are from Justice Souter and perhaps Justice Stevens and/or Justice Ginsburg. When you think about David Souter or Ruth Bader Ginsburg, John Paul Stevens, they're all moderate liberals on the political spectrum. None are as liberal as, say, William Douglas or William Brennan or Thurgood Marshall. But all are, to be sure, left of center. There's every reason to believe that David Souter's replacement, Sonia Sotomayor, will have the same ideology that he does.

Over the summer, I read dozens - maybe even hundreds - of Judge Sotomayor's opinions when she was an appeal judge in the United States Court of the Second Circuit. I would say, overall, they show her to be a moderate liberal. I think she's going to turn out to be more conservative than David Souter on criminal justice issues. She spent a good deal of time in her career as a prosecutor. But, overall, as to the issues that I've talked about, I think she's going to be exactly where Souter was.

I think when Justice Stevens or Justice Ginsburg retire, if they do during the Obama presidency, they will likely be replaced by individuals who are moderate liberals. I think the lesson that President Obama likely took from the confirmation of Sonia Sotomayor is that he should pick individuals like her who will please his political base and not require much political capital for their confirmation.

Moderate Liberal Justices Ahead

Sonia Sotomayor's nomination certainly pleased the Democrat political base. It didn't take any lobbying at all, any political capital, for President Obama to get Sonia Sotomayor confirmed. I think that's what President Obama is likely to do. Somebody who's liberal, another Thurgood Marshall, would be very difficult to confirm in the current political climate, so I think that President Obama is going to look for moderate liberals, especially moderate liberals without a paper trail.

Now, I don't want to underestimate that Sonia Sotomayor might have an effect on the Court in other ways. She's charming. I've met her on several occasions. She's likely very persuasive. Maybe she, by virtue of her life experiences and persuasiveness, can convince, say, Anthony Kennedy in an instance that David Souter couldn't. You never know for sure because the conversations occur behind closed doors but, at any rate, she might have a major effect.

But, overall, you should think about the Supreme Court now and where it's likely to go in the next four, eight, the next 10 years. If you're politically conservative, it should be a court to rejoice over. The statistics I mentioned earlier, Justice Kennedy sides with the conservatives twice as often as the liberals. And if you're politically liberal, then you should be glad that the Supreme Court is no longer deciding to 200 cases a year. You should be glad the courts decided only about 67 or 75 a year.

— Transcription by CastingWords

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