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Tuesday, October 20, 2015

Chemerinsky on "The Return of the Jedi"

The title of this post refers to the title of Erwin Chemerinsky's article in the most recent issue of The Green Bag.  There, Chemerinsky notes that the October 2014 term of the Supreme Court was filled with more liberal victories than any term in recent memories.  However...

Does this mean that the Roberts Court has moved to the left? Not at all. It always is dangerous to generalize from a single Term. A year ago, for example, commentary on the Court focused on the fact that 66% of the cases were decided unanimously. This year, by contrast, 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, the First Amendment rights of non-union members, and possibly abortion. These are all areas where Justice Kennedy is much more likely to side with the conservative Justices. So if this year was the “Return of the Jedi” for liberals, next year well could be “The Empire Strikes Back.”
In all of today's excitement about The Force Awakens, I couldn't let this one go.  Chemerinsky does a fine job summarizing the 2014 term's opinions in his article, but his out-of-order use of "Return of the Jedi" and "The Empire Strikes Back" is flat out wrong.  A far cleaner Star Wars reference (and one that could have persisted through the entire introduction) could have been to analogize the Warren Court to the Jedi Order that maintained order during the years of the Old Republic, but which ultimately may have played an unwitting role in both the rise of the Empire and collapse of the Jedi.

Following the dark time of Sith/conservative Supreme Court decisions, Chemerinsky may look upon the 2014 term and say "A New Hope?"

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