Law and the Courts

Erwin Chemerinsky and John C Yoo

Institute for Social Science Research, Working Paper Series from Institute for Social Science Research, UCLA

Abstract: Erwin Chemerinsky maintains that President George W. Bush took a historic opportunity to fill Supreme Court justice vacancies with ideologically right-of-center nominees. He explains that these justices will force the court to write opinions that break new ground in judicial activism. The areas that will be open to new adjudication include abortion rights, access to the courts, affirmative action, and presidential war powers. He describes the critical cases in each of these fields and the key points of contention. Professor Chemerinsky concludes that the incoming president may be able to offset the appointments of Justices Alito and Roberts with more centrist or center-left appointments if seats become open. John Yoo argues that presidents have historically resisted Supreme Court decisions especially strong presidents such as Jefferson, Jackson, Lincoln, and Franklin D. Roosevelt. Reagan changed this calculus by politicizing the courts further through the appointment of ideological allies. He maintains that the second Bush administration has not transcended constitutional limits in its actions. He supports his case by arguing that previous presidents have taken exceptional actions in times of war and that the “war on terror” has given the administration a mandate for its policies. He concludes that Bush administration is in much more conflict with the Congress than with the Court. The accompanying audio files provide the complete recording of the two talks.

Date: 2008-03-10
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