The Court should not let politically divided times affect its choices or decisions. Altering the Court’s role in politically divided times would require a definition of what qualifies as such an era and a theory of how to act in such times. Almost every era in American history could be deemed a politically divided time. Changing the Court’s role in politically divided times is inconsistent with its preeminent role: interpreting and enforcing the Constitution. This role does not change, and should not change, in politically charged moments. Indeed, history shows that the Court cannot know what is likely to lessen divisiveness, and when it has tried, it has gotten it tragically wrong. * Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law.

Review of Justin Driver's The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.

I have been a law professor for a long time—over 39 years. I have never seen my law students as despondent as during the last couple of weeks as they followed the Senate Judiciary Committee hearings dealing with the confirmation of Judge Brett Kavanaugh. So I decided to convene a faculty panel to allow some of my colleagues to share their thoughts about the situation. I wanted to schedule the panel in our largest room which was only available on Friday at noon. That is usually not the best time to get students to attend. To my surprise, not only was every seat taken, but every space on the floor was filled with sitting students and the back of the room was filled with people standing. I asked each of the faculty to say whatever they wanted to share about the situation and then I offered my thoughts. I said to the students that the Supreme Court is likely going to be very conservative and very inhospitable to individual rights for years and maybe decades to come. In light of that, we have only two choices: either give up or fight harder. Of course, that means there is only one choice: we are going to have to fight harder and better than ever before. Then I talked with them about one key way that they can fight harder: they can turn to state constitutions and state courts as an alternative forum for success. This is not a new insight. In 1977, Justice William Brennan wrote a famous article in the Harvard Law Review encouraging the increased use of state constitutional law.1 I am sure part

Legal education must adapt to address the changing demands on law school graduates. The ABA Task Force’s Report and Recommendations addresses some of these concerns. However, there are some valid criticisms of the Task Force’s approach. Law schools should address these issues for themselves by doing their own research, leveraging existing practice-oriented programs, and informing students of the importance of practice-related education before they graduate

In 1971, as a college freshman debater, one of the issues we debated was whether marijuana should be legalized. As I researched the topic, the arguments were overwhelmingly in favor of legalization, and it was difficult to put together a credible case for continued criminalization. Over 45 years have passed and the law has finally begun to change. An increasing number of states now have legalized or decriminalized possession of small amounts of marijuana. 1 As a result of initiatives in the November 2016 election, Colorado, Alaska, Oregon and Washington are now joined by California, Maine, Massachusetts and Nevada in legalizing possession of small amounts of marijuana.2 Nearly half of the states allow medical use of marijuana.3At the same time, however, marijuana remains a Schedule 1 controlled substance under the federal Controlled Substances Act, along with opoids, like heroin, and hallucinogenics, like LSD.4 The current Attorney General of the United States, Jeff Sessions, strongly opposes legalization of marijuana, and there is the real prospect of greater federal prosecutions for violations of the Controlled Substances Act.5These changing laws have resulted in an enormous inconsistency in the laws with regard to marijuana between the federal government and the states as well as among the states. Contrary to what many believe, marijuana laws continued to be enforced. For example, in 2014, according to statistics from the Federal Bureau of Investigation, 700,993 individuals in the United States- one every forty-five seconds-were arrested and charged with marijuana violations and of these, 619,678, or 88 percent, were arrested for simple possession.6 For marijuana to remain illegal, there is an enormous cost in terms of law enforcement resources, the criminal justice system, and people's lives. Even for those arrested and never prosecuted or convicted, arrest records have real harms in terms of the ability to get jobs, loans, housing and benefits.7Like all drug laws, the prohibition against marijuana is much more likely to be enforced against African-Americans and Latinos than against whites. According to a 2013 study conducted by the American Civil Liberties Union, whites and African-Americans use marijuana at roughly the same rates, but AfricanAmericans are 3.7 times more likely than whites to be arrested for possession of marijuana.8At the same time, however, marijuana is a huge cash crop in the in the United States. According to some industry estimates, the total American cannabis industry generated retail sales of $53 billion in 2015.9 Further, over the past two years, the fraction of marijuana sold through legal channels has grown from an estimated $3 billion to nearly $6 billion, as more states have voted to allow medical or recreational use.10 Professor DeVeaux notes that [m]arijuana is the most lucrative cash crop in the United States.11Illegality under federal law and in many states, though, poses serious legal problems. Professor Berch notes: Federally insured banks may decline to accept money from marijuana commerce because of the threat of money laundering prosecutions, leaving the businesses largely cash-only and cash-on-site. Marijuana dispensaries may not deduct business expenses from federal taxes. Lawyers may encounter ethical dilemmas advising marijuana businesses because attorneys cannot knowingly assist clients in illegal conduct, even if that conduct is legal in state in which the lawyer practices or the client acts.12From the perspective of constitutional law, the inconsistency in marijuana laws between the federal government and many states, among the states, and between the states and Native American tribes raises serious and often unprecedented federalism issues. This wonderful collection of Articles addresses them.One set of issues arises when considering whether the federal law prohibiting even possession of small amounts of marijuana preempts state laws that allow possession of small amounts of marijuana. …

“Judicial supremacy” is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions—such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine—are misguided and should be abandoned. * Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law. Parts of this paper are drawn from my book, CLOSING THE COURTHOUSE DOOR: HOW YOUR CONSTITUTIONAL RIGHTS BECAME UNENFORCEABLE (2017).

In 1999, the Los Angeles electorate approved an ambitious new charter for the city. One of the most important and controversial parts of the charter was the creation of a system of Neighborhood Councils. The Councils were designed to foster local ownership over municipal issues and to increase civic participation. Unlike systems of neighborhood governance in other cities, where a central board appointed representatives, these Councils were to be created from within the neighborhoods themselves.'This Essay discusses the objectives of the Councils, assesses their performance, and offers recommendations for their improvement. In so doing, the Essay builds on the work of one author, Erwin Chemerinsky, who was one of the central backers of the Council system.'This Essay proceeds in four sections. In Part I, the Essay offers Dean Chemerinsky's recollections of the development of the Councils and discusses the rationale for this system. In Part II, the Essay offers an overview of the history of minority representation in Los Angeles. This Part also documents the need for a decentralized system that would empower minorities to exert greater political influence.In Part III, the authors analyze the impact of the Neighborhood Councils on minority representation in Los Angeles. While noting that the Councils have lagged in Hispanic representation, the Essay argues that the Councils have provided a unique forum for minorities to meaningfully engage in the political life of the city. In particular, the Councils have been a source of strong political participation for Asian-Americans. In Part IV, the Essay offers suggestions to improve the Neighborhood Councils. Part IV also recommends that this model be expanded to other cities.

Some suggest the 2014 Term of the Supreme Court was the most liberal since the Warren Court. The liberal justices were in the majority in many of the major decisions, including in declaring unconstitutional state laws prohibiting same-sex marriage, upholding tax credits under the Affordable Care Act, preserving disparate impact claims under the Fair Housing Act, permitting states to use independent districting commissions, and several others. In this essay, I review the Court’s decisions concerning marriage equality, the Affordable Care Act, criminal procedure, the First Amendment, and separation of powers. Stunningly, the liberal justices were in the majority in all but one of the cases I discuss. Does this mean that the Roberts Court has moved to the left? Not at all. A year ago, commentary on the Court focused on the unanimity of the term; 66% of the cases were decided unanimously. This year, only 34% of the cases decided after briefing and oral argument were unanimous. Next year, the Court will be deciding cases about affirmative action, voting rights, First Amendment rights of non-union members, and likely abortion. These are all areas where Justice Kennedy is much more likely to side with the conservative justices. If this year for liberals is the “Return of the Jedi,” next year for conservatives well could be “The Empire Strikes Back.”

Both historically and in the present, the Supreme Court has largely been a failure In this devastating book, Erwin Chemerinsky-"one of the shining lights of legal academia" (The New York Times)-shows how, case by case, for over two centuries, the hallowed Court has been far more likely to uphold government abuses of power than to stop them. Drawing on a wealth of rulings, some famous, others little known, he reviews the Supreme Court's historic failures in key areas, including the refusal to protect minorities, the upholding of gender discrimination, and the neglect of the Constitution in times of crisis, from World War I through 9/11. No one is better suited to make this case than Chemerinsky. He has studied, taught, and practiced constitutional law for thirty years and has argued before the Supreme Court. With passion and eloquence, Chemerinsky advocates reforms that could make the system work better, and he challenges us to think more critically about the nature of the Court and the fallible men and women who sit on it.