THE CONSERVATIVE ASSAULT ON THE CONSTITUTION

A constitutional lawyer argues that since the Republican platform of 1964, the conservative movement has succeeded in altering basic precepts of constitutional law, not just through the policies of Presidents Nixon, Ford, Reagan and the two Bushes, but through Supreme Court decisions.

Chemerinsky, the founding dean of the University of California Irvine Law School and author of multiple legal texts (Enhancing Government: Federalism for the 21st Century, 2008, etc.), pulls no punches in charging that the conservative justices on the Supreme Court are activists driven by ideology in such matters as public education, affirmative action, presidential power, separation of church and state, individual liberties, rights to punitive damages, access to the courts and the rights of criminal defendants. To demonstrate how this shift affects individual lives, the author cites cases in each of these areas, many of which he participated in and lost as a pro bono lawyer in federal courts of appeal and before the Supreme Court. The cases include ordinary citizens in extraordinary circumstances: a man serving a life sentence for stealing videotapes from a store under California’s “three strikes” law; a man seeking punitive damages after his family was destroyed in the rollover of a Ford Bronco; a man seeking an injunction against police chokeholds after he was injured by one. Chemerinsky was also involved in more prominent cases, including the suit in the Florida courts following the disputed 2000 presidential election and the Valerie Plame case. While acknowledging that the Court’s shift to the right is likely to continue for decades, given the life tenure of justices, he believes that the pendulum will eventually swing back. The author contends that to bring about change in the composition of the Court it is essential to recognize that justices are not umpires but makers of value judgments and that the judicial confirmation process must include questions that reveal a nominee’s ideology and values and denies confirmation to those who do not answer such questions.

A hard-hitting polemic from the left, timed to coincide with the opening of the Court’s next term.