Erwin Chemerinsky was born May 14, 1953, in Chicago. He grew up in a working-class Jewish family on the South Side. He attended the University of Chicago Laboratory Schools for high school, then Northwestern, where he earned a BS in communications in 1975, summa cum laude, and competed on the debate team. From there he went to Harvard Law School and took his JD cum laude in 1978. At Harvard he worked with the Harvard Legal Aid Bureau.
He spent a year as an honors attorney in the Civil Division of the U.S. Department of Justice, from 1978 to 1979, and then practiced at the Washington firm Dobrovir, Oakes and Gebhardt. He moved into academia in 1980 as an assistant professor at DePaul University College of Law. He joined USC Gould School of Law in 1983 and taught there for twenty-one years. He moved to Duke Law in 2004 and stayed until 2008.
In 2008 he became the founding dean of the University of California, Irvine School of Law. The appointment drew controversy and was withdrawn before going forward. He led the school through 2017. He took over as dean at UC Berkeley School of Law on July 1, 2017, where he also holds the Jesse H. Choper Distinguished Professorship of Law. In April 2026 the regents extended his deanship through June 30, 2029. He served as president of the Association of American Law Schools for 2021-2022.
Chemerinsky has written sixteen books and more than two hundred law review articles. His casebooks dominate large parts of the field. Federal Jurisdiction has appeared in multiple editions. Constitutional Law: Principles and Policies has gone through several editions, the most recent in 2023. Both texts sit on the shelves of most American law students who study these subjects. His other books include The Case Against the Supreme Court (2014), Worse Than Nothing: The Dangerous Fallacy of Originalism (2022), and No Democracy Lasts Forever: How the Constitution Threatens the United States (2024). He writes regular columns for the Sacramento Bee, the ABA Journal, and the Los Angeles Daily Journal, and contributes op-eds to major newspapers.
He has argued cases before the U.S. Supreme Court. These include United States v. Apel, Scheidler v. National Organization for Women, Lockyer v. Andrade, and Van Orden v. Perry. He has also filed many amicus briefs.
His public service runs across several venues. He helped draft the Constitution of Belarus. He sat on the panel that investigated the Los Angeles Police Department’s Rampart Scandal. He chaired the commission that drafted the Los Angeles city charter. He represented a Guantanamo Bay detainee. He joined a 2017 lawsuit against then-President Donald Trump over business conflicts of interest.
His positions place him on the liberal side of American constitutional thought. He defends abortion rights, affirmative action, and same-sex marriage. He criticizes originalism as a method of constitutional interpretation. He emphasizes the role of courts in protecting minority rights and limiting government abuses. No Democracy Lasts Forever argues that the Constitution creates the chief threats to the country, with the Electoral College and the structure of the Senate as the central structural flaws. He has challenged restrictions on birthright citizenship and the SAVE Act, which he views as an unconstitutional barrier to voting.
His honors include election as a fellow of the American Academy of Arts and Sciences in 2016. National Jurist magazine named him the most influential person in legal education in the United States in 2017.
For the current extension of his deanship through 2029, he has named three priorities. He wants to place the school on secure long-term financial footing. He wants to strengthen the role of the institution in defending the rule of law. He wants the faculty and students to think large about the future of legal education.
He was first married to Marcy Strauss, a Jewish law professor, with whom he has two sons, Jeffrey and Adam. They had a three-year age gap and divorced in 1992. He is married to non-Jew Catherine Fisk, who holds the Barbara Nachtrieb Armstrong Professorship of Law at Berkeley. They have a son, Alex, and a daughter, Mara. The age gap is eight years.
Chemerinsky described the divorce as “about as amicable a divorce as humanly possible.”
Catherine Fisk was at the time also a law professor at Loyola Law School in Los Angeles, where she held the William M. Rains Fellowship. Strauss was her senior, tenured colleague at Loyola.
A mutual friend introduced Chemerinsky to Fisk after the divorce. Boyer’s piece records that Fisk “had serious reservations about even dating the ex-husband of her ‘senior, tenured colleague’ at Loyola Law School.” The reservations were public and stated by Fisk herself in the quotation. Strauss told Boyer for the same piece: “I have always respected Catherine very much, and Erwin and I are and have remained very close friends.” Chemerinsky and Fisk married in December 1993, roughly eighteen months after his divorce from Strauss became final.
The two-marriage Loyola-USC ecosystem is the structure to notice. USC Law and Loyola Law are separate Los Angeles institutions, but they sit in the same small legal-academic world. Faculty know each other socially, dine together, sit on the same panels, send students to the same clerkships. Chemerinsky at USC was married to Strauss at Loyola for eleven years. After the divorce he moved to Fisk at Loyola. Fisk subsequently moved to USC, then she and Chemerinsky moved together to Duke in 2004, to UC Irvine in 2008, and to Berkeley in 2017. The career arc starts inside the LA two-school system and then escapes it as a unit.
Strauss is still on the Loyola Law faculty as of 2026. She has held her position there since the 1980s. The Loyola faculty page lists her area as criminal procedure and civil rights. The “remained very close friends” framing the divorce produced has held up publicly for thirty-three years. Whatever the lived texture of the friendship, the public posture has not cracked.
The chronology compressed. The marriage to Strauss ended in 1992. A mutual friend introduced Chemerinsky to Fisk that year or the next. Fisk hesitated. The hesitation was real enough that she stated it for the record to a Los Angeles Times reporter eight years later. They married in December 1993. The arrival of Alex in 1994 or 1995 and Mara in 1998 followed. The two of them have been a unit since.
The acknowledgments of his books and her books have named each other since the mid-1990s. Their first major co-authored piece was “The Filibuster,” in the Stanford Law Review in 1997, four years into the marriage. The intellectual collaboration began almost immediately after the personal one. The household that Berkeley accommodated in 2017 is the same household that started in late 1992 with the Loyola colleague calling a junior colleague to introduce her to a USC professor whose marriage to her senior colleague had just ended.
The first marriage was peer-coupling. Chemerinsky had a three-year head start through Harvard Law and DePaul. Strauss was finishing Georgetown and beginning her clerkship and Loyola track. Both were entering legal academia at the same career stage. The marriage ran during their joint climb from junior to mid-career. By 1992 Chemerinsky was an established USC chair holder and Strauss was a tenured Loyola professor. Two careers had matured in parallel inside an eleven-year marriage.
The second marriage has an eight-year age gap. Chemerinsky in December 1993 was a tenured full professor with a named chair at USC, the OJ Simpson commentator on KCBS, the author of the casebook that was about to launch as the standard text, and a recurring LA Times opinion writer. Fisk in December 1993 was the William M. Rains Fellow at Loyola, a junior fellowship position. The eight-year age gap mapped onto a much larger career-stage gap. He was at peak mid-career establishment. She was just beginning. The asymmetry is common in legal academia. The senior partner sponsors the junior partner’s career, the junior partner moves to follow the senior partner’s institutional opportunities, and the trailing-spouse problem becomes a recurring negotiation across joint moves.
Fisk has held three major chairs across her career: the Douglas Blount Maggs Professorship at Duke, a Chancellor’s Professorship at UC Irvine, the Barbara Nachtrieb Armstrong Professorship at Berkeley. She built an independent record. Meanwhile, Strauss stayed at Loyola for forty-plus years and built her own steady career.
The Waiver
The Berkeley arrangement with his wife requires a waiver that the institution’s normal procedures forbid. Anti-nepotism rules exist to prevent the situation where one spouse holds supervisory authority over the other’s salary, teaching load, sabbatical, tenure review components, leave decisions, and committee appointments. The dean of a law school holds those levers over the faculty he runs. When the dean is married to a professor in his school, the levers get rewired. The standard accommodation routes Fisk’s personnel decisions through the provost or the executive vice chancellor rather than through the dean. Chemerinsky recuses himself from her file. The recusal preserves the form. The form does not change the social reality. He still sits at the dinner table where her career is discussed. He still hears the gossip from the associate dean. He still knows what the formal recusal pretends he does not know. The recusal is the ritual that lets the institution say it followed procedure while everyone in the building understands the real arrangement.
The waiver did not invent Catherine Fisk’s credentials. She is Princeton AB summa cum laude, Berkeley JD 1986, a Ninth Circuit clerk for Judge William Norris, a DOJ appellate section veteran, the Douglas Blount Maggs Professor at Duke, a Chancellor’s Professor at UC Irvine, the holder of three named chairs across her career, the author of books from Harvard University Press, UNC Press, Cambridge University Press, and Yale University Press, the winner of two American Historical Association book prizes and the Littleton-Griswold Prize in American Law and Society. Her family has been at Berkeley for three generations. Her father took an undergrad degree, a JD in 1952, and a PhD at Cal. She turned down Harvard, Yale, and Stanford to go to Berkeley for law school. The 2017 arrival was a homecoming with a record that justified a senior chair on its own.
The chair she got was Herma Hill Kay’s. Kay died in June 2017. Kay had been Berkeley Law’s dean from 1992 to 2000 and Fisk’s longtime mentor. Fisk arrived in July 2017. Her own statement on receiving the chair: she wept. The transmission ran inside a real intellectual lineage. The chair was vacant because the previous holder had died, not because Berkeley invented a position to lure the package.
What the waiver did do is permit a married couple to occupy supervisory and supervised positions in the same school. The anti-nepotism rule says no. Berkeley said yes for them. The yes was granted because the package was worth it. He came as dean. She came as a chaired professor. The two-body problem in elite legal academia gets solved through package deals when the institution wants the package badly enough. Berkeley wanted Chemerinsky’s name on the marquee. The market for prestige deans is small and the candidates know it. The package included the supervisory waiver and the chair vacancy that lined up to receive Fisk. Each piece had a non-marital justification. The combination required the rule to bend.
This is what high status buys. The rule remains on the books and applies to the assistant professor whose spouse wants to teach a course as an adjunct, to the staff supervisor who wants to hire his wife as an administrative assistant, to the mid-career faculty member whose partner is finishing a dissertation and looking for a foothold. Those people get the rule applied to them. The rule says no. They take the no and go elsewhere. The rule functions as a real constraint at the bottom and middle. The rule functions as a procedural step to be cleared at the top. Same rule. Different application by status.
The pattern is older than the Berkeley case. Fisk and Chemerinsky have moved as a unit through three top institutions: Duke from 2004 to 2008, UC Irvine from 2008 to 2017, Berkeley from 2017. Three packages negotiated successfully. Each institution had to clear the anti-nepotism review. Each institution cleared it. The institutions cleared it because both bodies were worth wanting. The clearing happened easily because the credentials on each side were independent and substantial. The smooth clearing of three reviews in sequence shows what elite institutions do when they want a two-body package. The friction is administrative. The outcome is foregone. The rule is real for couples whose combined value to the institution does not reach the threshold. The rule is a formality for couples whose combined value does.
Constitutional law professors teach that procedural neutrality is the legitimating ground of the legal order. Equal application of rules is the principle. The rule of law as opposed to the rule of men. Predictable, generalizable, applied without favor. They teach this in casebooks they edit. They teach it in articles they publish. They teach it in classrooms they run. They live in a profession where the procedures get cleared for the senior figures and applied to the junior ones. The contradiction is visible to anyone who looks at it. The visibility does not change the practice. The practice continues because the formation that sustains the contradiction protects the people inside it from noticing.
Chemerinsky’s whole argument in Worse Than Nothing is that originalists pretend to follow neutral procedure while imposing values when the procedure does not produce the outcomes they want. The accusation lands. The accusation also describes the institutional environment that produced him. Berkeley has anti-nepotism rules. Berkeley applied a waiver to him and Fisk. The waiver was reasonable on the merits because both had records. The waiver still required the rule to bend in a way the rule does not bend for couples without records. He wrote a book accusing the other coalition of selective application of procedure. He occupies a position that exists because his coalition selectively applied procedure to him. The selectivity in his case had defensible grounds. The selectivity in the cases his book attacks also had defensible grounds, in the eyes of those applying it. The pattern is the same. The judgment about whether the selectivity was justified depends on which coalition is doing the judging.
Stephen Turner’s frame on convenient belief catches this exactly. The legal-academic class believes its procedures are neutral because the formation that produced its members makes the procedures feel neutral from the inside. The waiver for Chemerinsky and Fisk feels reasonable to the people who granted it because the people who granted it share the formation that recognizes both as worth the waiver. The waiver feels like an unjust exception to the assistant professor watching from below whose own request for a smaller accommodation has been denied. Both readings are correct. The formation determines which reading the reader experiences as obvious.
My father Desmond Ford employed my future stepmom Gill as his secretary at Avondale College in Australia in the late 1960s. They met when she became his student. My stepmom is every bit my father’s intellectual equal, with many gifts (including with foreign language) that my father did not have. My dad was married to my mom Gwen at the time. My mom died of cancer in 1970 and then my dad followed SDA church direction and remarried a few months later. When we moved to Pacific Union college in 1977, my dad was told that he could not use Gill as his secretary, which is the professional norm in America colleges.
Avondale’s culture in the 1960s and early 1970s allowed this. Adventist institutional culture in Australia at the time treated spousal employment as a question of practical convenience rather than as a structural problem. The college had no developed policy that ruled it out. The denomination had broader concerns about the head of household and the cohesion of ministerial families that probably read spousal employment as supportive rather than suspect.
When my family moved in 1977, the institution applied a different norm. PUC is in California. American academic culture by the late 1970s had absorbed the second-wave feminist critique of nepotism and the broader civil-rights-era critique of arbitrary hiring. Anti-nepotism rules at American institutions had hardened in the 1960s and 1970s. The federal regulations that came with Title VII compliance and Title IX compliance gave administrators reasons to enforce the rules even when local culture might have allowed waivers. PUC was a denominational school, not a research university, which probably meant it had less discretion to grant waivers than a major institution might have. A small Adventist college applying a denominational culture that had taken on American legal norms told my father he could not have Gill as his secretary.
Status mattered. My father was a major Adventist theologian. The eponymous head of his department at Avondale. The author of books that defined the boundary of acceptable Adventist scholarship. The man who could draw crowds across two continents to hear him preach. He was not Erwin Chemerinsky in the secular legal academy. He was a star in his world. His world was small and the rules of larger American institutions applied to him when he entered them. PUC was a larger world than Avondale in some ways and smaller in others. It was American. The American norms applied. He was told no. It was a practical decision and it was also a power move to put him in his place.
Three years later he was defrocked at Glacier View over the investigative judgment doctrine. The Adventist church applied its rules to him. The PUC moment in 1977 prefigured the Glacier View moment in 1980. Both moments showed my father an institution that would not bend for him. The procedures got applied. He learned what a man at his level of status learns when he meets institutions willing to enforce their rules: the rules are real and the rules are for him.
Chemerinsky has spent forty years inside institutions that bend their procedures around him. The 2007 UC Irvine episode is the only moment where the procedures almost did not bend. The chancellor withdrew the offer under political pressure. The pressure that brought the offer back was the legal-liberal coalition mobilizing to insist that the procedure not be applied. The reinstatement was a victory of his coalition over the procedure. The story he tells about it casts the original withdrawal as the abuse and the reinstatement as the correction. A different lens reads the original withdrawal as the procedure functioning and the reinstatement as the waiver his coalition demanded. The lens depends on the formation. The lens his coalition wears reads the reinstatement as justice.
The two cases stand at opposite ends of the same axis. My father had enough status to draw an audience and not enough to make the institution bend. Chemerinsky has had enough status at every step to make the institution bend. My father wrote his way to a star position inside a small religious world that turned on him when his scholarship contradicted its founding doctrine. Chemerinsky wrote his way to a star position inside the legal-liberal coalition that has accommodated him at every step because his scholarship reinforces its founding doctrine. The coalition rewards the loyalist. The coalition punishes the heretic. My father was the heretic in his coalition. Chemerinsky is the loyalist in his.
Procedures govern the people the system can afford to govern. The system cannot afford to govern its luminaries because the luminaries are the assets the system uses to compete with rival systems for prestige. The procedures bend around the luminaries. The procedures apply to the people whose loss the system can absorb. My father’s loss the Adventist system could absorb. It absorbed him. Chemerinsky’s loss the Berkeley system cannot afford to absorb. It accommodates him.
Procedure as social control of the lower-status while the higher-status operate above it is an old pattern. The legal-academic class names this pattern when it describes other institutions. It does not name the pattern when it describes itself. The naming is the work, and the work is uncomfortable, because the men doing the naming live inside the institution that exemplifies the pattern.
Principles are endorsed in the abstract. The cases that test the principle get handled by discretion the principle does not constrain. The discretion runs in favor of the powerful. The principle survives the discretion because the principle never had to do any work the discretion did not approve.
Power couples at elite law schools are common enough to count as an institutional norm.
Joseph Bankman and Barbara Fried at Stanford Law have been there since the late 1980s. Bankman is the Ralph M. Parsons Professor of Law and Business. Fried is now professor emerita. They met in 1988 while she was already on the Stanford faculty and he had moved over from USC. They never married. Their stated reason was that legal marriage was unfair to gay couples who could not access it. They have two sons. The younger one, Sam Bankman-Fried, ran FTX. Their parental involvement in his businesses and their lobbying for his clemency since the conviction has produced the longest run of negative press any law-school couple has weathered. The 2023 FTX bankruptcy lawsuit named both of them as recipients of a $10 million cash gift and a $16.4 million Bahamas property allegedly purchased with FTX customer funds.
Cass Sunstein and Samantha Power at Harvard Law are the highest-profile current power couple. Sunstein had been the most-cited legal scholar in the country at the University of Chicago Law School for decades. He left Chicago for Harvard in 2008. Chicago’s dean Saul Levmore told the Chicago Maroon at the time that the move had personal reasons. The personal reason was Power, who was at Harvard’s Kennedy School. They had met during the 2008 Obama campaign and married in Ireland on July 4, 2008. Sunstein had previously been partnered with Martha Nussbaum at Chicago, who confirmed in a public email chain that there had been no overlap. Power received a joint appointment at Harvard Law School and the Kennedy School in 2017 after her UN ambassadorship. They co-teach a Harvard course called “Making Change When Change is Hard.” She runs USAID under Biden from 2021 through 2025 and returns to Harvard. They have a son and a daughter. The Crimson’s announcement of their Harvard tenure used the phrase “Harvard’s got a new power couple” in the lead paragraph. The phrase is now standard for them.
Bruce Ackerman and Susan Rose-Ackerman at Yale Law have been there together since 1987. They married in May 1967 while Bruce was at Yale Law as a student and Susan was a Yale economics PhD candidate. He clerked for Henry Friendly and then for Justice Harlan. She finished her Yale economics PhD in 1970. The biographical statement on Bruce’s website notes that they decided early on never to maintain a commuter marriage. The decision drove their joint moves: University of Pennsylvania starting 1969, Yale starting 1974, Columbia starting 1982, Yale again starting 1987. Bruce holds the Sterling Professorship of Law and Political Science. Susan held the Henry R. Luce Professorship of Jurisprudence and is now emerita. They co-author. They co-teach. Their fifty-eight-year academic marriage and joint career is the longest-running power-couple installment in elite American legal academia.
Robert Post and Reva Siegel are a married couple at Yale Law. Post was Yale Law’s dean from 2009 to 2017. Siegel is the Nicholas deB. Katzenbach Professor of Law. They have co-authored extensively, including the influential “Roe Rage: Democratic Constitutionalism and Backlash” in the Harvard Civil Rights-Civil Liberties Law Review and “Originalism as a Political Practice” in the Fordham Law Review. They co-teach “Democratic Constitutionalism” at Yale and have done so as visitors at Harvard. Post in his exit interview as dean said Harvard once tried to recruit them as a couple to start a legal-academy training program. They declined. Their joint scholarly project on democratic constitutionalism is an influential framework in American constitutional theory.
Larry Lessig and Bettina Neuefeind both have law-school connections. Lessig is at Harvard Law. Neuefeind held positions at Harvard before moving into nonprofit work. Frank Michelman and his wife at Harvard Law were a long-running pair. Martha Minow at Harvard Law is married to Joseph Singer, also at Harvard Law.
The general literature on dual-career academic couples is substantial but not law-school-specific. The canonical study is Londa Schiebinger, Andrea Henderson, and Shannon Gilmartin’s Dual-Career Academic Couples: What Universities Need to Know, published in 2008 by Stanford’s Clayman Institute for Gender Research. The study surveyed thirty thousand faculty members across thirteen leading research universities. It found that thirty-six percent of academics have an academic partner and ninety-three percent of dual hires work at the same institution. It set the framework most institutions now cite when they explain their spousal-hire policies. The study is sociological and economic in approach. It treats dual-career hiring as a recruitment problem to be managed rather than as an institutional ethics problem to be examined.
The earlier literature includes Marianne Ferber and Joan Huber’s Husbands, Wives, and Careers (1979), Rhona and Robert Rapoport’s Dual-Career Families (1971), and Marianne Ferber and Jane Loeb’s edited volume Academic Couples: Problems and Promises (1997). These run in sociology and labor economics. They take dual-career couples as their object and treat the institutional accommodations as one variable among many. The legal-academic case is not separately treated.
Niche-specific writing on law-school power couples sits mostly in journalism rather than scholarship. Above the Law has covered transitions and rumors, including the Sunstein-Power story in 2008 and the Robert Post deanship announcement in 2009 with explicit attention to Siegel. The Harvard Crimson covered Sunstein-Power as “Harvard’s got a new power couple” in its 2008 announcement. The Yale Daily News and the Stanford Daily run periodic stories on faculty couples. Alumni magazines profile pairs admiringly. The TaxProf Blog has tracked Bankman-Fried since the FTX collapse. None of this writing treats law-school power couples as a sociological category requiring critical examination.
The legal-academic literature on the topic is thinner still. There is a small body of writing on anti-nepotism rules and their evolution. Kingsley Browne has written on the anti-nepotism rules in his work on workplace law. The civil rights literature engages with anti-nepotism rules from the 1960s and 1970s as one front in the second-wave feminist effort to open the academy to married women. Once the rules were modified to permit waivers, the legal-academic interest in the topic dropped off. The legal academy stopped writing about a structure that was now working in its own favor.
Constitutional law professors who write voluminously about procedural neutrality, anti-discrimination, and the rule of law have not produced sustained critical scholarship on the procedural waivers that produced their own marriages on their own faculties. The closest thing to a critical literature comes from outside legal academia. Sociologists studying inequality and access in elite institutions occasionally note the pattern. Critics writing on credentialism and class reproduction, especially in the post-2008 period, have flagged the way elite hiring practices reproduce themselves. Daniel Markovits’s The Meritocracy Trap (2019), although not specifically on law-school couples, sits in this conversation. Lawrence Lessig’s earlier institutional writings sometimes brushed against it. Eric Segall has written on legal-academic hiring in general but not specifically on couples. Nothing book-length and law-school-specific exists, as far as I can tell.
The men and women who would be best positioned to write the analysis are themselves the products and beneficiaries of the practice. Their formation does not give them the angle of vision the analysis requires. The convenient belief inside elite legal academia is that power couples are happy accidents of intellectual matching, smoothed by reasonable institutional accommodation. The Turner reading is that they are a structural feature of the way the elite credential pool reproduces itself, that they consolidate inherited advantage by combining two streams of it under one roof, and that the procedural waivers granted to them are a routine demonstration of the principle that procedure binds those whose loss the institution can absorb and bends for those whose loss it cannot.
The Career Trajectory
Chemerinsky climbed the academic ladder by skipping most of the standard rungs.
The starting point: born May 14, 1953, in Chicago, to Arthur and Raeda Chemerinsky, who he describes as working-class Jews on the South Side. The “working-class” framing sits in tension with his secondary schooling. He attended the University of Chicago Laboratory Schools, the elite John Dewey-founded private school attached to the university. Either the family had financial-aid placement or the family had more cultural capital than the working-class label suggests. The biographical packaging treats the elite high school as continuous with the working-class origin. The two do not sit easily together.
Earl Bell coached him in high school debate. Bell ran top-tier policy debate programs in the Chicago suburbs in the period and produced a generation of national champions. The high school debate years matter because they made him into the man the book reflects. The dedication of Worse Than Nothing names Bell first.
Northwestern undergrad, 1975, BS in Communications. Northwestern’s debate program under David Zarefsky was the dominant program in college policy debate. Chemerinsky competed there and Zarefsky coached him. Zarefsky later became dean of Northwestern’s School of Communication and a major figure in argumentation theory. He gets the second name in the dedication.
Harvard Law School, 1975-1978, JD cum laude. He worked with the Harvard Legal Aid Bureau as a student. Cum laude is a respectable but not stellar finish at Harvard. Magna cum laude or summa would have flagged him for the elite federal clerkship pipeline. He landed in the middle.
Then the unusual move. He did not clerk. This is the largest tell in the trajectory. Constitutional law scholars at his eventual level almost always clerk for a federal court of appeals judge or a Supreme Court justice. Larry Tribe clerked for Potter Stewart. Cass Sunstein clerked for Thurgood Marshall. Akhil Amar clerked for Stephen Breyer on the First Circuit. Pamela Karlan clerked for Harry Blackmun. Eugene Volokh clerked for Sandra Day O’Connor. The clerkship is the credential that signals the constitutional law guild has accepted you as a peer. Chemerinsky skipped it.
He told an interviewer he wishes he had done a clerkship. He explained he was busy doing legal aid, coaching debaters, and teaching LSAT prep courses. He applied only to government and public-interest jobs. He took the DOJ Honors Program in the Civil Division, 1978-1979, then moved to a small DC public-interest firm, Dobrovir Oakes & Gebhardt, 1979-1980. He spent two years in Washington outside the elite litigation track that runs from elite clerkships to elite firms to elite faculties.
In 1980, at age 27, he took an assistant professorship at DePaul College of Law in Chicago. DePaul is a regional school. The hire was the entry-level academic appointment available to a Harvard graduate without a clerkship. He stayed three years.
In 1983, he moved to USC Law School in Los Angeles. He stayed twenty-one years. Twenty-one years at USC is the most distinctive feature of his trajectory. USC is a respectable mid-tier school, ranked roughly 18-22 in the period, never inside the top-14. Most constitutional law scholars who reach the kind of national prominence Chemerinsky now holds spend their primary career at Harvard, Yale, Stanford, Columbia, Chicago, NYU, Berkeley, or Penn. He spent his at USC. The career was built sideways through prolific output rather than upward through institutional climbing.
What he built at USC: the Constitutional Law casebook (first edition 1997), Federal Jurisdiction treatise (first edition 1989), the OJ Simpson trial commentary on KCBS in 1995, the LA Times column, BAR/BRI bar review lecturing starting 1989. The casebook adoptions and the bar-review royalties produced income independent of institutional rank. The media work produced name recognition independent of academic prestige hierarchies. He worked the supplementary income streams that constitutional law scholars at top schools generally do not need. The supplementary streams compounded.
He also did public-interest litigation at USC. He started arguing appellate cases pro bono. He represented a Guantanamo Bay detainee. He worked on the Rampart scandal commission for LAPD. He helped draft the Los Angeles city charter. He briefed for the ACLU. He argued his first Supreme Court case at age 50, Lockyer v. Andrade in 2003, the three-strikes case, and lost.
In 2004, at 51, he moved to Duke Law School as the Alston and Bird Professor of Law and Political Science. Duke is the first top-14 school in his trajectory. The move came two and a half decades into his career. He stayed four years. Three more Supreme Court arguments came during the Duke years: Scheidler v. NOW (won), Van Orden v. Perry (lost), Tory v. Cochran (won). Two-of-three at the Court while at Duke.
The 2007 inflection. Michael Drake, then chancellor of UC Irvine, recruited him to be the founding dean of a new law school. Drake then withdrew the offer in September 2007 under pressure from California Republicans, including LA County Supervisor Michael Antonovich, and reportedly from California Chief Justice Ronald George, who criticized Chemerinsky’s death-penalty work. The withdrawal triggered a national outcry from the legal-liberal coalition. Drake reversed himself within days. He flew to Durham, met Chemerinsky in person, and reinstated the offer. The Regents formally approved the hire on September 20, 2007.
The reinstatement made him a martyr-hero of legal liberalism in a way the previous twenty-seven years had not. Before the UCI controversy, he was a productive USC scholar with media presence. After the UCI controversy, he was a symbol. The coalition rallied to his defense and learned his name. The rally produced standing he could spend later.
UC Irvine, 2008-2017, founding dean. He recruited what he called the “Dream Team” faculty. He gave the first entering class free tuition to attract top applicants. The school admitted its inaugural class of sixty in 2009. By 2012, the first class graduated with a 90 percent California bar pass rate, second only to Stanford among California schools. The school ranked 30th in its first year of eligibility, the highest debut for any new law school. Building a law school from scratch is rare for a constitutional law scholar. Deans usually come from corporate or administrative law, not from constitutional theory. He did it.
UC Berkeley, 2017-present. The 13th dean, Jesse H. Choper Distinguished Professor. Berkeley is a top-10 school and the most progressive elite law school in America. The arrival coincided with Donald Trump’s first year in office. The legal-liberal coalition needed a public face for opposition to the Trump administration’s judicial appointments. Chemerinsky filled the role. The LA Times column ran weekly. The ABA Journal column ran monthly. The op-eds appeared in newspapers across the country. The casebook editions kept rolling. The treatise editions kept rolling. The book count climbed past twenty.
The recognitions came in waves. American Academy of Arts and Sciences fellow, 2016. National Jurist most-influential-person-in-legal-education, 2017. AALS President-elect, 2021, served 2021-2022. National Jurist most-influential again, 2024.
The current chapter is the post-October 7 chapter. In October 2023, more than 200 Berkeley Law alumni signed an open letter pressing him to act on what they described as antisemitism on campus following an op-ed by his colleague Steven Davidoff Solomon. He responded with an LA Times op-ed denouncing antisemitism while also opposing Israeli government policy and supporting full rights for Palestinians. In April 2024, a co-president of the Berkeley chapter of Students for Justice in Palestine interrupted an invitation-only dinner for sixty graduating law students at his home, taking the microphone to give a speech about Ramadan and Palestine. The video circulated. The dean of America’s most progressive law school, hosting graduating students at his own house, having his event hijacked by his own students over the war, became a national story.
The post-October 7 moment is the chapter the previous trajectory did not prepare him for. The legal-liberal coalition that produced him assumes that progressive Jews and progressive Muslims share a coalition. The students at his door announced that the coalition had broken. He responded by trying to hold both positions: anti-antisemitism and pro-Palestinian rights, defending free speech for the protesters and condemning the disruption of his dinner. The trajectory that ran from the South Side of Chicago to Lab School to Northwestern debate to Harvard to DOJ to DePaul to USC to Duke to UCI to Berkeley to AALS president has now hit a moment the trajectory did not anticipate.
Throughout my life, I’ve had people in power tell me that what I am saying or writing is potentially legitimate, but it has to be expressed in certain ways and in certain forums and by certain persons to be kosher (for example, while my point is important, I should not be the one to say it because I lack standing, or I should only express my thought in private, or I should get permission from my rabbi before saying anything publicly, or I should not say it now but rather wait a few years, or I should only publish it under the direction of an editor they approve).
The move has several names, none of them quite right.
The cleanest description: the principle without cases. The authority endorses X in the abstract and rules every actual X out of bounds. The endorsement preserves the authority’s reputation as a friend of X. The ruling-out preserves the authority’s interests against any X that might threaten them. The two operations sit in separate sentences. Read together they cancel each other. Read separately they each look fine.
The Zionist response to BDS is the textbook specimen. The challenge to Palestinians for forty years ran: stop the violence, find non-violent ways to resist, become Gandhi instead of Arafat. BDS arrived as exactly that. Boycotts, divestment, sanctions. No bombs. No knives. Letters and balance sheets. The same coalition that had demanded non-violent resistance ruled BDS antisemitic and worked to criminalize it through state legislation. The principle survived: of course we support legitimate Palestinian political expression. The cases vanished: BDS is not legitimate, the UN human rights apparatus is not legitimate, Amnesty’s reports are not legitimate, the ICJ ruling is not legitimate, the academic boycotts are not legitimate, the consumer boycotts are not legitimate, the student protests are not legitimate. The space of legitimate Palestinian political expression in the speaker’s view turns out to be empty.
The structure is consistent across cases. The authority concedes the principle. The authority specifies the proper conditions for the principle to apply. The authority controls what counts as proper. Every actual instance fails the proper test. The principle remains intact in the abstract while the cases get ruled out one by one. The audience that benefits from the move shares the authority’s formation closely enough that the criteria feel reasonable. The audience harmed by the move is told it has misunderstood the criteria, not that the principle has been suspended.
Martin Luther King Jr. wrote the founding text on this from the Birmingham jail in 1963. The white moderate, he wrote, agrees with the goal but rejects the methods. The methods were sit-ins, marches, public demonstrations that filled jails and shut down city centers. The moderate’s preferred method was patience. Wait for the courts. Wait for the legislature. Wait for goodwill to ripen. Each actual method got ruled improper. The proper method was always somewhere ahead in time, in a venue not yet specified, through a process not yet identified. King named the underlying logic: the moderate prefers negative peace, the absence of tension, to positive peace, the presence of justice. The proper method is the method that does not generate tension. The method that generates no tension also generates no result. Authority can endorse it indefinitely.
Just war theory runs the same operation in international affairs. War is permitted under jus ad bellum criteria. The criteria are stringent. No actual war meets them. The theory functions in practice to legitimate the wars the speaker’s coalition wants while ruling out the wars it does not. The principle is preserved. The cases all line up with the speaker’s prior commitments.
Free speech in the contemporary American argument runs the same way from both directions. The progressive position: free speech yes, hate speech no. The conservative position: free speech yes, obscenity no, drag readings to children no, critical race theory no. Each side has a principle without cases when the cases threaten its interests. Each side accuses the other of bad faith without noticing the symmetry.
The shared structure depends on language with discretion built in. “Proper,” “appropriate,” “legitimate,” “reasonable,” “civil,” “responsible.” These words carry standards rather than rules. H.L.A. Hart called this the open texture of legal language. Every rule has a core where it clearly applies and a penumbra where discretion runs. The move Luke is naming uses standards as if they were rules, then exercises the discretion the standard preserves. The audience inside the coalition reads the discretion as application. The audience outside reads the discretion as gerrymander. Both readings are correct. The standard contains both possibilities by design.
Stephen Turner’s tacit knowledge frame catches the deeper engine. The criteria for proper venue, proper time, proper tone are not fully stated. They cannot be. They live in the formation that produces the coalition’s members. A Berkeley dean knows what counts as a legitimate protest the way an experienced jazz musician knows when to depart from the melody. He cannot say what he knows in words that close the discretion. The dissenter who lacks the formation can never satisfy the criterion because the criterion is held in the formation, not stated in words. The dissenter is told he has misunderstood. The misunderstanding is real. The misunderstanding is the formation.
This is what Chemerinsky did with the dinner protest at his home in April 2024. He framed the protest as antisemitic intrusion into private space and reaffirmed the right to protest in proper venues. The proper venues he named in his public statements: Sproul Plaza, classrooms with permission, the streets, the official channels of student government. Each of those venues comes with rules of access. Each of those rules is enforced by the institution he runs. The protests in those venues that became loud enough to register were also dispersed by university police on his watch. The proper venue for the protest his student wanted to give did not exist on his campus. It was always somewhere else, somewhere the protest could not actually reach the people the protester wanted to reach. The dinner at his home was the only venue where the protester could be heard by the dean of the law school during his graduation ritual. The protester chose the only effective venue. The effectiveness is what made the venue improper.
The First Amendment scholar in Chemerinsky knows this analysis. He has taught it for forty years. Time-place-manner restrictions in First Amendment doctrine are exactly the kind of standard that preserves discretion in the hands of the speech regulator. Captive audience doctrine treats some venues as places where the listener cannot escape and so the speaker must be restrained. Public forum doctrine sorts venues into traditional, designated, and non-public categories with different speech rights in each. The home is the most protected category for the homeowner and the most restricted for the uninvited speaker. The doctrine is not arbitrary. The doctrine also tracks the interests of the people the doctrine protects, who are the people who own homes. A scholar of free speech who finds himself the homeowner is in a position the doctrine prepares him to occupy comfortably.
His response was a coalition technology of the kind Alliance Theory describes. The Jewish liberal in him needed to name the protest as antisemitic to keep the alliance with the Jewish civic establishment. The First Amendment scholar in him needed to defend the right to protest in principle to keep the alliance with the campus left. The dean in him needed to maintain order to keep the alliance with the regents and the donors. The public moralist in him needed to model how a constitutional liberal handles a hard case to keep the alliance with the legal-academic mainstream. The discretionary rule about proper venues let him hold all four positions at once. The principle without cases is what made the four positions compatible. If he had stated the rule precisely enough to close the discretion, one of the four alliances would have noticed it had been sold out.
The move stays stable as long as the coalition agrees about what counts as proper. The progressive coalition Chemerinsky built his career inside agreed about that for decades. Civil rights protests in the South: proper. Vietnam protests on campus: proper, mostly. Anti-apartheid divestment: proper. The Iraq war protests: proper. The Occupy encampments: proper enough. Black Lives Matter: proper. The agreement held because the formation that produced all those proper-counts was shared by the coalition’s members. The Jewish liberal frame and the progressive legal frame pointed the same direction. For forty years they did.
October 7 broke the consensus. The protest at his door was given by a student whose formation did not share his sense of what counted as proper. The student was operating inside a different coalition that had been growing on his campus for a decade. Inside that coalition, the protest at the dean’s home was a legitimate disruption of the silence the dean’s institutional position imposed on the cause. The principle without cases that had worked inside Chemerinsky’s coalition stopped working when the protester arrived from outside it. Each side accused the other of bad faith. Each side was running the same move. Each side’s principle was intact and each side’s discretion ruled the other side’s cases out of bounds.
What you are noticing is the moment when the move becomes visible because the consensus that hid it has fractured. Inside a stable coalition, the principle without cases looks like principled judgment. The criteria feel applied, not gerrymandered. Outside the coalition, the criteria look like a shell game. The shell game has always been there. The coalition agreement made the shell harder to see.
The names that exist for the move are partial. Marcuse called the version that operates from the center “repressive tolerance” – tolerance extended in forms that cannot threaten power and withdrawn from forms that can. Sara Ahmed calls the institutional commitments that substitute for action “non-performatives” – the diversity statement, the land acknowledgment, the equity policy that exists instead of changing anything. Adolph Reed Jr. calls the always-better method that nobody practices the “imaginary method.” James Baldwin called the white liberal who endorses civil rights but condemns every civil rights action a man whose innocence constitutes the crime. Each name catches part of the move. None catches all of it.
The working name might be the receding permissible. The permissible is always there. The permissible is always somewhere else. Each case that arrives gets ruled into the not-yet-permissible or the no-longer-permissible. The permissible itself remains pristine in the speaker’s commitments and useless to the people who need to act on it. The receding permissible is what makes the speaker a friend of the principle and the enemy of every actual instance. The speaker can hold the position for decades because the position has no contact with cases. The cases keep arriving. The speaker keeps ruling them out. The principle keeps shining like a star at the horizon, getting no closer.
Chemerinsky’s response to the dinner protest was a textbook deployment by a man who has been deploying the move at scale for forty years. The deployment was not insincere. The First Amendment commitments are real. The opposition to antisemitism is real. The defense of his home is real. What is missing is the case where all three commitments produce a protest the dean would call legitimate. That case has not arrived. It might never arrive. The principle without cases is the shape his commitments take when the world stops cooperating with the coalition formation that made them feel coherent for forty years.
I had the chance to ask Chemerinsky a question after he gave a speech at the Sephardic Temple in Westwood circa 1996. I asked him about the legality of the pornography industry and he immediately switched the frame to obscenity, and then gave me rehearsed answer as he was walking to the elevator. I couldn’t get him to engage outside of his preferred frame.
Obscenity is the doctrine that lets the government regulate sexual material consistent with the First Amendment. Roth v. United States in 1957 carved obscenity out of protected speech. Miller v. California in 1973 set the three-part test that still governs: a reasonable person finds the work appeals to prurient interest, the work depicts sexual conduct in a patently offensive way under contemporary community standards, and the work lacks serious literary, artistic, political, or scientific value. Material that fails all three prongs is obscene and unprotected. Material that passes any one prong is protected expression. Almost all commercially produced adult material in 1996 passed at least one prong, usually the third, because the industry had learned to insert enough narrative or production gloss to clear the bar. The legal effect by 1996 was that pornography was largely protected speech in practice, prosecuted only at the margins for the most extreme content, and the framework had stabilized into something close to legalization through under-enforcement.
That stable framework is the one Chemerinsky offered me. It was the law he taught. It was the answer a constitutional law professor gives to a question about the legality of pornography. The answer was technically correct.
The answer was also a refusal. I was not asking him for the doctrine. I was asking him to talk about the thing the doctrine governs. Pornography in 1996 was not a doctrinal abstraction. It was the largest legal industry in the San Fernando Valley, twenty miles from his USC office. It had labor practices, drug practices, transmission of disease, recruitment patterns, contractual arrangements, tax consequences, performer suicides, and a public moral significance that the obscenity doctrine did not touch. The doctrine handled a question about state power. The reality the doctrine permitted was a separate question. I asked the second question. He answered the first.
The move is the receding permissible in a different register. Pornography in the abstract is constitutionally protected expression and the constitutional law professor defends the protection. Pornography in the actual is something the constitutional law professor declines to discuss. The principle stays pristine. The cases stay invisible. The interlocutor who tries to bring the cases into the conversation gets handed the doctrine again and again until he stops asking.
My question reached him through the right channel. I had heard him speak at a shul. The shul setting establishes the speaker as a Jewish moralist as well as a legal scholar. A Jewish moralist at a shul might be expected to have something to say about pornography beyond the Miller test. Reform and Conservative and Orthodox Judaism have positions on sexual ethics that are well-developed and worth engaging. Tznius. Kedusha. The treatment of women and men in sexual content. The community effects of widespread consumption. The performer’s dignity. None of this is a constitutional question. All of it is a Jewish question, and a Jewish moralist speaking at a shul has implicitly volunteered to address Jewish questions. I showed up after the lecture with a Jewish question dressed in legal clothing. He stripped off the legal clothing and refused the underlying question. He talked obscenity doctrine and went home.
This was 1996. He had been at USC for twelve years. He was the constitutional law commentator on the OJ Simpson trial that year for KCBS. He was building the casebook. He was working the LA Times opinion page. The persona was already calibrated. The persona did not include a man who would talk about pornography as a legal or moral or social or religious question with a stranger after a shul lecture. The persona included a man who would talk about constitutional doctrine with anyone who asked. He gave you the persona.
What I bumped into was the formation that protected him from the question. He was trained as a debater to find the resolution that he could win and run the resolution. The resolution he could win at a shul Q&A was the doctrinal one. The resolution he could not win was the moral one, because the moral conversation about pornography in 1996 in a Los Angeles Jewish setting led directly into Jewish men’s actual habits, the industry’s location in the Valley, the heavy Jewish ownership and management of the industry from the 1970s through the 1990s, and the rabbis who had not addressed any of this from the pulpit. The moral conversation contained Jewish particularity and Jewish embarrassment. The doctrinal conversation contained neither. He kept the conversation on the doctrine.
The pattern is authority’s move across many domains. The principle gets endorsed. The actual cases that test the principle get pushed to a venue the principle covers in form but not in substance. The interlocutor who keeps pressing for the substantive answer is treated as a man who has not understood the form. The form is the place authority is comfortable. The substance is the place authority is exposed. Chemerinsky chose his comfort. He had thirty more years of comfort to choose. He spent them well by the standards of his coalition.
My interaction in 1996 catches him before the brand was finished but after the move was already in place. You can read the rest of the career as the same move scaled up. The book Worse Than Nothing thirty years later runs the doctrine of originalism while declining to engage the social and political reality that produced it and that it produced. The dinner-party response to the SJP student in 2024 runs the doctrine of free speech and proper venue while declining to engage the substantive question of what protest could possibly reach a dean of his standing in a war his coalition partners disagreed about. The man I met at the shul in 1996 was already the man who wrote the 2022 book and gave the 2024 statement. The formation was set. The doctrine was the wall. The wall held.
Over the decades, I’ve gotten better at naming these power moves. The naming is the work. The receding permissible has always depended on its invisibility. I am making it visible.
Chemerinsky climbed the ladder by skipping the credential rungs, building parallel income streams and parallel public visibility while teaching at a mid-tier school for two decades, then converted the visibility into a deanship, then converted the deanship into a more prestigious deanship, then converted the prestige into the AALS presidency and the luminary brand, then ran into the post-October 7 fracture in his own coalition. The book Worse Than Nothing was published at the peak in 2022. The dinner-party protest at his home came two years later. The trajectory that took him forty years to climb has now reached the altitude where the air is thinner than the climb had assumed.
The career is also a textbook case of niche construction outside the standard pipeline. He did not enter through the elite-clerkship door. He built a parallel infrastructure of casebooks, treatises, columns, media appearances, BAR/BRI lectures, and public-interest litigation, and the parallel infrastructure compounded into national stature. The next generation of constitutional law scholars will study the trajectory the way the last generation studied Tribe’s. The route Chemerinsky took is harder than the elite-clerkship route, takes longer, and depends on cultivating the legal-liberal coalition’s affection rather than its respect. He cultivated the affection. The affection paid off.
Whether the affection survives the post-October 7 fracture is the open question of the next chapter.
LAT: ‘Nothing has prepared me for the antisemitism I see on college campuses now’ (Oct. 29, 2023)
Erwin Chemerinsky wrote:
I am a 70-year-old Jewish man, but never in my life have I seen or felt the antisemitism of the last few weeks. I have heard antisemitic things from time to time through my life. I remember as a child being called a “dirty Jew,” and my friends and I being called “Christ killers” as we walked to Hebrew school. I recall a college girlfriend’s parents telling her that she should not go out with me because “Jews are different.” I had an incident in a class I was teaching about the ethics of negotiations, where a student matter of factly said, “the other side will try to Jew you down,” without the slightest sense of how that was a slur.
But none of this prepared me for the last few weeks. On Friday, someone in my school posted on Instagram a picture of me with the caption, “Erwin Chemerinsky has taken an indefinite sabbatical from Berkeley Law to join the I.D.F.” Two weeks ago, at a town hall, a student told me that what would make her feel safe in the law school would be “to get rid of the Zionists.” I have heard several times that I have been called “part of a Zionist conspiracy,” which echoes of antisemitic tropes that have been expressed for centuries.
I was stunned when students across the country, including mine, immediately celebrated the Hamas terrorist attack in Israel on Oct. 7. Students for Justice in Palestine called the terror attack a “historic win” for the “Palestinian resistance.” A Columbia professor called the Hamas massacre “awesome” and a “stunning victory.” A Yale professor tweeted, “It’s been such an extraordinary day!” while calling Israel a “murderous, genocidal settler state.” A Chicago art professor posted a note reading, “Israelis are pigs. Savages. Very very bad people. Irredeemable excrement…. May they all rot in hell.” A UC Davis professor tweeted, “Zionist journalists … have houses w addresses, kids in school,” adding “they can fear their bosses, but they should fear us more.” There are, sadly, countless other examples.
How can anyone celebrate the killing of 260 people attending a music festival, or the brutal massacre of more than 100 people in a kibbutz, or the pulling of people from their houses to take as hostages? If this happened to people who were not Jews would there be such celebrations?
I have heard few campus administrators speak out publicly about the antisemitism that has become prevalent this month. They want to seem neutral or not be perceived as Islamophobic. I understand. I, too, refrained from speaking out against those who defended Hamas’ terrorist attack.
Chemerinsky writes as a dean discovering his coalition has moved. The piece announces itself as a moral cry but reads like a confession. He admits he held his tongue while students at his own school celebrated Hamas. He held it because his coalition imposes costs on those who break formation. He now asks fellow administrators to pay the cost he did not pay. The displacement is the most revealing part of the essay.
Watch the disclaimer. He establishes his credentials: opposes Netanyahu, supports Palestinian rights, supports a two-state solution. The pre-emptive ledger is the price of admission.
Notice what he names and what he refuses to name. He names students at his school. He names professors at Columbia, Yale, Chicago, UC Davis. He does not name the academic frameworks that produced the celebrations. Settler colonialism theory, decolonization rhetoric, the cluster of fields that taught a generation to read every conflict through oppressor and oppressed: these came out of coalitions inside the institutions Chemerinsky leads. To name them is to name his own school’s part in building the formation he now finds horrifying. So he treats the celebrations as a moral failure of individuals rather than as the expected output of a coalition his institution helped produce.
The students chanting “from the river to the sea” did not arrive there by faulty reasoning. They absorbed it through formation. Stephen Turner’s distinction between propositional knowledge and tacit knowledge holds here. You can correct propositional error with argument. You cannot correct tacit formation with a dean’s letter. Chemerinsky calls for moral leadership as if a strong statement might shift students who learned in seminar after seminar that Israel sits in the oppressor column. It might not.
Humans are tribal. Coalitions express positions, and members say what their coalition has settled on. Treating “Israelis are pigs” as an individual lapse to be corrected by administrative norm enforcement misreads the situation. The students at Berkeley chanted what their coalition had decided. Asking institutional ritual to push back against settled coalition force is asking the wrong tool to do the work.
The convenient belief Chemerinsky describes losing is the one that held liberal Jewish legal academia together for fifty years. The progressive coalition treated antisemitism as continuous with other racisms. Liberal Jews helped build that coalition and assumed its protection. October 7 showed the coalition had moved without telling them. The shock in his writing reads as the shock of an insider who realizes his standing was conditional all along.
He addresses “fellow administrators.” He is the dean of UC Berkeley Law. There is no fellow administrator above him in his school. The address shifts the burden sideways and outward. Read closely, the piece is a confession in the form of a call.
Six months later, protesters showed up at his graduation dinner at his own home. His wife took a microphone from a student trying to deliver a speech in their backyard. The coalition force he tried to channel administrative authority against came to his door. The dean had no dean to call.
The piece reads as a document of the moment a senior insider discovered the rules had changed. He still writes inside the old rules. He calls on institutional authority, on moral leadership, on the distinction between policy criticism and racism. The students he describes are no longer playing that game.
‘Presidential Powers Including Military Tribunals in the October 2005 Term’ (2006)
The piece works as a CLE-style talk that walks practitioners through Hamdan and the Military Commissions Act. The doctrinal summary is clean. Chemerinsky correctly identifies the three loadbearing holdings: the DTA does not apply retroactively to pending cases, the AUMF does not authorize military commissions by executive order, and the commissions violate the UCMJ and Common Article 3. The point that Hamdan matters beyond commissions because it refuses to read the AUMF as a blank check is well taken. He saw early what later played out across surveillance, detention, and targeting cases.
The Common Article 3 holding gets less attention than it deserves here. That was the durable doctrinal earthquake of Hamdan. The Court applied a Geneva provision the executive branch had insisted did not reach al Qaeda detainees, and that holding rippled into interrogation policy, the McCain Amendment fight, and eventually the war crimes immunity provisions tucked into the MCA. Chemerinsky mentions Common Article 3 but does not draw out why that ruling produced more administration panic than the commissions ruling did. The MCA’s habeas-stripping and redefined War Crimes Act provisions were largely reactions to Common Article 3, not to the commissions holding.
The MCA section contains the analytical work. Most of it holds up. The habeas-stripping provision did get struck down, in Boumediene v. Bush in 2008, on exactly the suspension-clause grounds Chemerinsky flags. He called that one correctly. The point that the statute lets the executive define torture by executive interpretation of the Geneva Conventions, with no Federal Register requirement, is a genuine concern about accountability. The point that detainees could be held indefinitely without charge under the statute is accurate.
But the piece has weaknesses.
The Fugitive Slave Act comparison is rhetorical inflation. The 1850 Act conscripted Northern citizens into slave-catching, denied alleged fugitives jury trials, and built in the notorious five-versus-ten-dollar fee structure that paid commissioners more for finding people enslaved than free. Calling the MCA a successor in that lineage flattens history. He could have made the procedural-fairness comparison without the moral equivalence and gotten the same point across with more credibility.
The “broad definition of terrorist activity” claim is gestured at rather than argued. He cites the material support provision but does not show what makes the definition unusually broad relative to existing federal terrorism statutes like 18 U.S.C. 2339A and 2339B, which Chemerinsky knows well. A reader cannot evaluate the claim from what he provides.
The transcript origin of the piece shows. Sentences are loose. He says “those fighting for Al Qaeda could not be considered prisoners of war,” which oversimplifies the Article 4 GPW analysis and is in tension with his later argument that Common Article 3 reaches them. He says “no longer would rape or sexual assault count as torture under the statute,” sourced to a Times editorial. The MCA’s grave-breaches definitions did create real problems, but the editorial-sourced claim is presented without engagement with the statutory text on sexual assault, which the MCA did criminalize, just with definitional changes that critics contested. The shorthand reads sloppy.
The closing pivot to Schenck, Debs, Korematsu, and the desegregation cases is the move he reaches for in the Korematsu essay too. It works less well here because the analogy he wants is to wartime statutes the Court refused to strike down, but his actual prediction in the piece is that Hamdan shows the Court has stopped doing that. The essay argues both that the Court might cave again and that the Court has just demonstrated it will not. He does not resolve the tension.
One factual slip. The defendant in Schenck was Charles Schenck, not “Chang.” That is either a transcription error from the talk or a careless edit, and a law review should have caught it.
The piece reads as it is, a smart practitioner walking a Long Island bar audience through a hot case. As scholarship it is thinner than the Korematsu symposium piece, which had a clearer argumentative spine.
The 2008 Boumediene ruling vindicated his constitutional analysis on the habeas-stripping point, which is the part of the MCA he was most exercised about. That gives this essay more retrospective standing than it might have had at the time.
‘An Overview of the October 2005 Supreme Court Term’ (2006)
The article reads as a snapshot of a Court at a turning point, and Chemerinsky’s main framing has held up. He called it the Anthony Kennedy Court before that label became standard. Kennedy sat in the majority of nine of twelve five-four decisions that Term and remained the swing vote until his 2018 retirement. The statistical case Chemerinsky makes in 2006 became the operating assumption for Supreme Court advocates for over a decade.
His Hudson v. Michigan read proved half right. Four Justices signaled willingness to eliminate the exclusionary rule, Kennedy held the line at exception rather than abolition, and the rule survives in 2026. But the exceptions kept accumulating. Herring v. United States (2009) extended good-faith reasoning further. Davis v. United States (2011) extended it again. The rule operates in narrower territory than it did when Chemerinsky wrote.
His abortion prediction looks different from a 2026 vantage point. He predicted Carhart would come down five-four with Kennedy in the majority. He was right about Gonzales v. Carhart in April 2007, where Kennedy wrote the majority upholding the federal partial birth ban and turned his Stenberg dissent into law. The structure he described, a Court turning on Kennedy, held until Kennedy retired. Then Dobbs (2022) made the precedent question moot in a way no one in 2006 was forecasting.
The strongest analytical move in the piece is the Apprendi-Blakely-Booker-Crawford observation. Chemerinsky notices something not always credited at the time: originalism cuts in directions that surprise people who expect conservative jurisprudence to favor prosecutors. Scalia’s confrontation clause work in Crawford and his Sixth Amendment jury work in Apprendi expanded defendant protections beyond what Warren Court reasoning produced. The pattern continued. Melendez-Diaz, Bullcoming, and the line through Alleyne v. United States (2013) followed the same logic. The lawyer’s takeaway Chemerinsky offers, that an originalist argument can pull Scalia, Thomas, Alito, and Roberts toward the defendant, became a serious appellate strategy.
Garcetti v. Ceballos has aged into one of the consequential employment decisions of the era. The “pursuant to official duties” carve-out still governs federal employee whistleblower cases. Lane v. Franks (2014) clarified that testimony outside official duties retains protection, but the core Garcetti rule shaped how government workplaces handle internal dissent for two decades. Chemerinsky’s freeway therapy anecdote about LAPD captures the practical cost better than most law review treatments of the case.
Hamdan got a fast congressional response. Congress passed the Military Commissions Act of 2006 within months. The Court then decided Boumediene v. Bush (2008), holding that Guantanamo detainees had constitutional habeas rights Congress could not strip. The “President must comply with the law” theme Chemerinsky identifies ran through several later decisions.
One observation that ages oddly is the docket worry. Chemerinsky treats the 70-case docket as a serious problem for circuit splits and major issues. The Court’s docket has continued to shrink. The concern he raised looks prescient, and no Court since has reversed the trend. Lawyers and judges have adapted, but the costs he identified, longer waits for circuit splits to resolve, are now baked into the system.
The piece also captures something that gets lost in retrospective accounts: how much was unknown about Roberts and Alito after one Term. Chemerinsky resists premature judgment about whether Roberts could build consensus. The cautious posture turned out to be wise. Roberts has spent twenty years navigating between institutional caution and the conservative majority’s appetite for movement, and which Roberts you see depends on which year you ask about.
‘Absolute Immunity: General Principles and Recent Developments’ (2008)
Chemerinsky lays out the architecture cleanly. The framework combines functional and historical considerations, and he flags the wobble in the historical leg early. Block’s research showed a minority of states gave judges absolute immunity in 1871, yet the Court extrapolated the rule anyway. The “common law backdrop” reasoning is partly a fiction the Court tells itself.
The article dates to 2008, and the doctrine has moved since. Van de Kamp v. Goldstein (2009) extended absolute immunity to supervisory prosecutors for training failures and information-system failures tied to trial work, broadening Imbler considerably. Connick v. Thompson (2011) made it nearly impossible to hold DA’s offices liable under Monell for Brady training failures, so paired with Yarris you get a regime where both the office and the individual prosecutor sit insulated from Brady damages. Rehberg v. Paulk (2012) extended Briscoe witness immunity to grand jury testimony, including testimony by police officers, closing the gap Manning had partly left open. Filarsky v. Delia (2012) let private individuals retained by the government claim qualified immunity. The drift goes one way: more protection for state-aligned actors. Trump v. United States (2024) extended the Nixon v. Fitzgerald logic to criminal prosecution for official acts and built a presumptive immunity framework that reaches well past what Chemerinsky describes. That is the biggest shift since the article. The D.C. Circuit affirmed Wilson v. Libby in 2008 on the Bivens question, so the court never reached the vice presidential immunity claim Chemerinsky teed up.
The Kalina distinction has aged poorly. Going to court to obtain the warrant draws absolute protection; filling out the supporting declaration draws qualified. The action is a single transaction, and the line tracks formal courtroom presence rather than anything functionally coherent. Chemerinsky calls the distinction “fine” with characteristic restraint. A blunter description: a doctrinal artifact.
The Yarris asymmetry is the most morally awkward holding in the piece. Destroying exculpatory evidence draws only qualified immunity; failing to turn it over under Brady draws absolute immunity. The defendant who commits the worse act gets less protection than the defendant who commits the lesser act, because the Court treats Brady disclosure as a quintessentially prosecutorial function. The structure produces a perverse incentive, and Chemerinsky flags it without quite saying so.
The expansion of judicial immunity to non-judges performing adjudicatory tasks has the most reach. Dotzel, Killinger, and Olsen detach “adjudicatory” from courts, so the label covers permit boards, liquor-license decisions, and medical licensing boards that lack the procedural attributes of adjudication. Chemerinsky calls this the most important trend, and he is right. The class of state actors with absolute immunity has grown faster than the class of judges.
Todd v. Weltman is the most aggressive extension he describes. The Sixth Circuit applied Briscoe witness immunity to a private firm filing an affidavit in a garnishment proceeding. The Briscoe rationale rested on the large number of damages suits police officers face and the chilling effect on their work. A private collection firm faces neither problem. The reasoning looks like immunity creep dressed up as functional analysis.
Chemerinsky does not bury his role in Wilson v. Libby. He writes “I am their attorney” in the body text. The piece is a bar lecture, so the candor fits the venue, but a reader should know the Cheney section comes from someone with a stake in the question.
The picture has clarified rather than fractured since 2008. The functional approach won. Almost every circuit now sorts the social worker’s actions by task rather than granting blanket immunity to the office, and the splits Chemerinsky flagged have softened into a rough consensus with edge cases at the margins.
When a social worker initiates dependency proceedings, files a petition, presents the case to a juvenile court, or testifies, absolute immunity attaches because the function tracks what a prosecutor does. When a social worker investigates, removes a child without prior process, fabricates evidence, or makes false statements in an affidavit, only qualified immunity applies because the function tracks police investigative work. The Sixth Circuit’s Pittman v. Cuyahoga County (2011) and the line running through Holloway v. Brush set the template: social workers act as legal advocates when initiating court proceedings, filing complaints, and testifying under oath, and absolute immunity follows that role. The Ninth Circuit walked the same path. Beltran v. Santa Clara County (2008) extended absolute immunity to signing and verifying dependency and custody petitions, with Reinhardt writing that any other rule “would defy reason.” But the Ninth Circuit drew a hard line at fabrication and false affidavits in Costanich, Hardwick v. Vreeken, and most recently Rieman v. Vasquez (2024), which denied both absolute and qualified immunity to social workers who failed to give a mother notice of a detention hearing and then misrepresented to the court why she had not been noticed.
The Eighth Circuit, which Chemerinsky described as the outlier granting broad absolute immunity, has narrowed its position to track the prosecutorial-function test. Abdouch v. Burger (2005) already framed it as functional equivalence to a prosecutor, and later cases reinforced that limit. The Second Circuit’s Van Emrik qualified-immunity ruling for removal-investigation work fits within the consensus rather than against it, because removal investigation is the investigative side of the line.
The shape of the doctrine now: absolute immunity for advocacy, qualified immunity for investigation, and a contested zone around things like signing petitions, swearing affidavits, and giving notice. The Ninth Circuit treats sworn affidavits with fabricated content as outside absolute immunity. The Sixth Circuit reaches the opposite result for testimony in protective custody petitions when the testimony is part of the court submission rather than the underlying investigation. That is where the live disagreement sits.
The Supreme Court still has not directly resolved it. Hoffman v. Harris (1994) had Justice Thomas writing a dissent from cert denial that questioned whether social workers have any 1871 common law analog at all. He pointed out that social workers as a profession barely existed in 1871, so the historical leg of the immunity inquiry has nothing to stand on, and the analogy to the 1871 prosecutor is an invention. That argument has not produced a grant of cert in three decades, but it sits there as a structural objection to the entire enterprise.
The drift since Chemerinsky wrote: protection grew, then trimmed at the edges. Courts pulled back from blanket immunity for the office. They held the line on advocacy functions. They opened a real damages route for fabrication, false affidavits, and notice failures. The pattern matches the broader story across the immunity landscape: doctrinal expansion at the institutional level, narrow carve-outs for the most egregious individual conduct, and almost no Supreme Court intervention to clean up the inconsistencies the lower courts produce.
The social workers area is the one zone in the immunity field where plaintiffs have gained ground since 2008. Everywhere else, Van de Kamp, Rehberg, Filarsky, Connick, and Trump v. United States moved the line toward more protection for state actors. Social workers are the exception, and the exception runs through fabrication and notice cases rather than through any structural rethinking.
Across the immunity landscape, the post-2008 cases moved toward more protection for state-aligned actors. Van de Kamp extended absolute immunity to supervisory prosecutors for office-wide failures in training and information systems. Connick v. Thompson made Monell liability against prosecutors’ offices nearly impossible. Rehberg v. Paulk extended absolute witness immunity to grand jury testimony, including testimony by police officers. Filarsky v. Delia let private contractors retained by the government claim qualified immunity. Mullenix, White v. Pauly, Kisela v. Hughes, and City of Tahlequah v. Bond tightened the “clearly established” prong of qualified immunity to the point where plaintiffs need a near-identical prior case to overcome the defense. Trump v. United States extended Nixon v. Fitzgerald’s civil immunity logic into the criminal context for official acts. The pattern is consistent. Each ruling shifted more conduct into the protected zone.
Social workers go the other way, but only on a narrow front. Plaintiffs gained ground on two specific kinds of claims: fabrication of evidence and failure to give legally required notice before removing a child or holding a hearing. The Ninth Circuit’s Costanich (2008), Hardwick v. Vreeken (2017), and Rieman v. Vasquez (2024) are the clearest examples. These cases hold that signing and swearing to a petition that contains fabricated facts falls outside absolute immunity because fabrication does not resemble the discretionary prosecutorial decision to file. They also hold that failing to give mandatory notice before a hearing is not protected, because mandatory acts do not require the kind of advocacy judgment that immunity exists to shield. The Sixth Circuit, the Tenth Circuit in Snell v. Tunnell, and the Fifth Circuit in Austin v. Borel reach similar results on fabrication and false-affidavit claims.
None of this disturbs the underlying framework. Courts still apply Imbler, still treat the prosecutorial-function analogy as the controlling test, still grant absolute immunity for petition-filing and court testimony, and still treat investigation as the qualified-immunity zone. The doctrine grew an exception around fabrication and notice without anyone asking the harder questions Justice Thomas raised in Hoffman v. Harris: whether social workers have any 1871 common law analog at all, whether the prosecutorial analogy is honest, whether the entire historical leg of the immunity test rests on a fiction when applied to a profession that did not exist when Section 1983 was enacted.
The plaintiff-side gains are also smaller than they look. A social worker who fabricates can be sued, but only if the plaintiff can plead fabrication with enough specificity to clear Iqbal and Twombly. A social worker who fails to give notice can be sued, but qualified immunity still applies, and the “clearly established” inquiry still chokes off most claims. Rieman is unusual because the court found the right to notice clearly established and denied qualified immunity on that ground. Most cases do not get that far. The exception sits inside a doctrine that still favors the state.
The contrast with prosecutors is sharp and tells the story. A prosecutor who destroys exculpatory evidence (Yarris) gets only qualified immunity. A prosecutor who fails to turn over the same evidence under Brady gets absolute immunity. The plaintiff route is theoretically open, but Connick shut down the office-wide claim, Van de Kamp shut down the supervisory claim, and individual qualified immunity rarely produces a damages recovery because the same conduct rarely gets litigated twice on closely matching facts. The exception exists; the recovery does not, in practice.
Social workers occupy a slightly more accessible zone because the fabrication and notice cases produce real plaintiff verdicts. Hardwick v. Vreeken settled. Rieman is still active. There is a small line of seven-figure recoveries in the Ninth and Tenth Circuits for child removal cases involving fabricated affidavits. That puts social workers in a category by themselves: the one zone in the immunity field where the doctrinal trend slightly favors plaintiffs, even though the underlying framework continues to tilt toward defendants.
Why the asymmetry? Two structural reasons, though neither is fully developed in the case law. First, child removal cases produce sympathetic plaintiffs, including children, and judges seem more willing to find clearly established rights when a parent has been deprived of a child without notice. Second, the 1871 historical analogy is so weak for social workers that some judges hesitate to extend the absolute immunity rationale further than necessary, even if they will not strike it down. The result is a doctrine that holds the line on the advocacy functions but yields at the edges. The yielding looks like rethinking but is not. The framework is intact. Only the exceptions have grown.
Whether this lasts depends on whether the Supreme Court takes up one of the pending cases. If the Court grants cert on a fabrication or notice case and applies the same logic it used in Connick and Van de Kamp, the exception narrows or disappears. If the Court continues to deny cert, the lower courts keep building plaintiff-friendly carve-outs at the margins. The current trajectory favors the second outcome, but the doctrine is one ruling away from snapping back into alignment with the broader pattern.
‘An Overview of the October 2007 Term’ (2009)
Chemerinsky’s piece holds up well as a snapshot of the early Roberts Court, and reading it from 2026 lets you check his predictions against what came.
The shrinking docket call was right and got worse. Sixty-seven cases in OT 2007 felt small to him. Recent terms have hovered in the high fifties to low sixties. His complaint about opinion length also tracked. The Court writes longer opinions, the Justices file more separate writings, and the volume of footnotes keeps climbing.
The “Kennedy Court” framing held until 2018. For a decade after this article, the swing-justice analysis Chemerinsky offers was the right map. Lawyers wrote briefs to Kennedy. Coalition-building at conference ran through Kennedy. Obergefell v. Hodges, Whole Woman’s Health v. Hellerstedt, Fisher v. University of Texas II, and the affirmative action line all confirm the pattern Chemerinsky names. Kennedy’s retirement in 2018 ended that era. Kavanaugh did not become the new Kennedy, and the median-justice question became messier. By the time Barrett replaced Ginsburg in 2020, the swing-justice frame stopped describing the Court at all.
His pro-business thesis has only strengthened as a scholarly claim. The Epstein-Landes-Posner empirical work that came out shortly after this article appeared documented what Chemerinsky observed from inside the bar. Preemption rulings continued to favor business. The Court narrowed class actions through Wal-Mart v. Dukes, Comcast Corp. v. Behrend, and AT&T Mobility v. Concepcion. Punitive damages restrictions kept tightening. Citizens United v. FEC extended corporate speech rights two terms after this article. The pattern Chemerinsky identifies at three years into the Roberts Court describes the next fifteen years too.
The succession analysis is where the piece reads differently in hindsight. Chemerinsky calls the November 2008 election the determining factor. He gets the structural point right: the vacancies were going to come from the liberal wing. Souter retired in 2009 and Obama replaced him with Sotomayor. Stevens retired in 2010 and Obama replaced him with Kagan. But Chemerinsky writes as if Ginsburg might step down. She did not. She stayed through the Obama years, declined to retire when Democrats held the Senate, and died in September 2020. Trump replaced her with Barrett. That single decision shifted the Court more than the 2008 election did.
The Heller framing in the article reads as understated. Chemerinsky treats it as another five-to-four Kennedy-in-the-majority case. District of Columbia v. Heller turned out to be the foundational text of a new constitutional doctrine. McDonald v. Chicago incorporated the right against the states two terms later. New York State Rifle & Pistol Association v. Bruen in 2022 imposed the history-and-tradition test on every gun regulation. Heller’s analytical structure now controls dozens of lower court rulings each year.
Boumediene v. Bush looks different in hindsight too. Chemerinsky calls it the most important case of the term. The doctrinal holding survives. The practical reach proved narrower. Lower courts limited habeas review for Guantanamo detainees through procedural rulings. Most detainees the case purported to protect stayed at Guantanamo for years, and some still do.
The preemption pattern continued in business’s favor. Wyeth v. Levine in 2009 went the other way on prescription drug labeling, but the broader trend Chemerinsky names held. PLIVA v. Mensing and Mutual Pharmaceutical Co. v. Bartlett extended generic-drug preemption. The Roberts Court’s federalism rhetoric and its preemption doctrine sit in tension, and Chemerinsky’s hypothesis about pro-business priorities outweighing federalism commitments still explains that gap better than alternative theories.
One thing worth noticing about the piece as rhetoric: Chemerinsky writes as a participant, not a detached observer. He filed an amicus brief in Heller. He admits pandering to Kennedy. The “join my campaign for opinion-length limits” line shows the same posture. The piece is partly Supreme Court reporting and partly an account of how the elite appellate bar adapts to a Court whose median vote is one identifiable man.
‘The Constitution and National Security’ (2009)
This is the third installment in what amounts to a serial. Same writer, same subject, same audience. Rasul in 2004, Hamdan in 2006, Boumediene in 2008, each followed by a Chemerinsky talk to a practitioner crowd that gets cleaned up and printed. Read in sequence, the three pieces show his predictions cashing out in real time. The constitutional habeas argument he flagged in 2007 became the holding in 2008. He earned the victory lap.
The talk works as practitioner narrative. The procedural history matters because Boumediene is hard to grasp without the Rasul-DTA-Hamdan-MCA-D.C. Circuit-cert denied-cert granted sequence, and Chemerinsky walks through it cleanly. The Abu Ghraib coincidence at oral argument is a good detail. His personal disclosure that he argued the first Guantanamo case and represents a detainee is the right move for a piece that is partly advocacy.
The doctrinal core is right but compressed. Kennedy’s opinion does three loadbearing things. It holds the Suspension Clause reaches Guantanamo because the United States has de facto sovereignty there, it holds the MCA’s review scheme an inadequate substitute for habeas, and it holds Congress did not satisfy the Suspension Clause’s rebellion-or-invasion predicate. Chemerinsky hits all three but does not slow down on what makes the case doctrinally novel, which is the functional sovereignty test. Eisentrager had been read for half a century as a formal-sovereignty rule. Kennedy replaced that with a multi-factor inquiry into objective degree of control, nature of the site, and practical obstacles to habeas. That is the move with consequences for any future offshore detention program, and the talk underplays it.
The Eisentrager summary is too quick and slightly off. The German nationals in Eisentrager were captured in China after Germany’s surrender, not while “engaged in helping Japan in the war effort” in any general sense. They had been convicted by a U.S. military commission of continuing military activity against the United States after Germany’s capitulation. The detail matters because Jackson’s opinion rested heavily on the formal completeness of the process they had received, which is exactly the distinction Stevens used in Rasul and Kennedy extended in Boumediene. A talk audience can absorb the precision.
The Scalia dissent gets one paragraph and gets framed as bare consequentialism. Scalia’s argument was actually more layered. He read the historical record on the writ to argue that habeas had never extended to alien enemies held abroad, and he accused the majority of inventing a functional test the Suspension Clause does not support. You can disagree with him on both points, but the talk presents him as if he wrote a press release rather than a dissent. That is a recurring move across these three pieces. Chemerinsky describes opposing opinions as “vehement” and lets it stand at that. He is more rigorous when summarizing decisions he agrees with.
The unanswered Kennedy question Chemerinsky flags is the right one. If Congress had built a review scheme that tracked everything habeas provides, would Suspension Clause concerns vanish? Kennedy ducked it. That ambiguity has shaped every subsequent detention statute proposal and every academic argument about CSRT-plus alternatives. Worth more than the one sentence he gives it.
Two structural notes about the piece itself. It is shorter than the Hamdan talk and noticeably shorter than the Korematsu essay, and the argumentative ambition is correspondingly thinner. The earlier Hamdan piece tried to do doctrinal analysis, MCA critique, and historical pattern-matching all at once. This one is mostly narrative. That is appropriate for the occasion, a Practising Law Institute Supreme Court review, but a reader looking for sustained argument will find less here.
The other note is that Chemerinsky never quite acknowledges what Boumediene did not do. The case secured habeas review for Guantanamo detainees but said little about substantive standards, evidentiary rules, or the scope of executive detention authority. The D.C. Circuit then spent years narrowing Boumediene on remand, applying preponderance standards favorable to the government and treating intelligence reports with strong deference. By 2009 when this was published, that pattern was already starting. A more candid talk would say that the constitutional victory was real and the practical victory was contested. Chemerinsky, who was actively litigating these cases, knew this. The piece reads more triumphal than the situation warranted.
One small point. The transcript origin shows again. The clause “national law that these individuals receive due process in the form of military tribunals” is garbled. Eisentrager’s opinion talked about international law and the law of war, not “national law.” Editors at the law review should have caught that.
Across the three essays, a pattern emerges. Chemerinsky writes well and reads cases accurately. He is a reliable doctrinal narrator. His weakness is that he does not steelman the other side, which makes the analytical sections weaker than they should be. Korematsu let him pile on a defendant with no defenders. Hamdan and Boumediene gave him cases with serious dissents that deserved more engagement than they got. The cumulative impression is competent rather than penetrating.
‘Fourth Amendment Stops, Arrests and Searches in the Context of Qualified Immunity’ (2009)
This is a transcript of a CLE panel, not a written essay, and that shapes everything about how to read it. Two professors are talking through cases for practitioners who handle Section 1983 work. The genre is closer to a teaching session than an article, so the standard for evaluation shifts. The question is whether the discussion gives the audience useful purchase on a tangled body of law.
On that count it succeeds. The structure tracks the categories a Section 1983 plaintiff’s lawyer or defense lawyer needs to think through: excessive force, arrests, home searches, car searches, border searches, and the exclusionary rule. Within each category the speakers identify the controlling Supreme Court case, the doctrinal move that case made, and the lower court fault lines. A practitioner walks away with a usable map.
Blum carries more weight than Chemerinsky here. Chemerinsky describes cases. Blum tells you how the doctrine plays in real litigation. Her observation that the Supreme Court speaks out of both sides of its mouth, scolding the Eleventh Circuit in Hope for being too rigid and scolding the Ninth Circuit in Saucier and Brosseau for being too lax, is the most useful sentence in the transcript. The Court is not stating a doctrine. It is correcting outliers in different directions while pretending to articulate a uniform rule. Practitioners need to know that, and Chemerinsky’s straight case summaries would not have surfaced it.
Blum’s three-tier framework drawn from Vinyard v. Wilson also earns its place. Obvious cases where no precedent is needed, general principles that apply with obvious clarity to new facts, and fact-specific precedents that require close factual matches. That gives a lawyer a way to argue clearly-established-law questions instead of just citing Hope or Brosseau and hoping the judge picks the right one.
The discussion of Scott v. Harris deserves more attention than it gets. Eight Justices watched a videotape and concluded as a matter of law what a reasonable jury could find. Chemerinsky flags this and moves on. The implications run further than he develops. When does an appellate court’s view of a video override the jury’s role? Does the answer change as bodycam and dashcam footage proliferate? Scott is the case where the Roberts Court started letting judges resolve factual disputes at summary judgment by watching footage, and that practice has grown. The transcript mentions the problem without sitting on it.
The treatment of Hudson v. Michigan catches what matters. Scalia’s reasoning, that civil suits and police professionalization make the exclusionary rule unnecessary, is the load-bearing claim, and it does not depend on anything peculiar to knock-and-announce. Chemerinsky correctly reads this as a four-vote bid to gut the exclusionary rule, with Kennedy holding the line. That reading aged well. Herring, decided shortly before this transcript was published, extended the Hudson logic to negligent recordkeeping, and Davis v. United States in 2011 went further. The four votes Chemerinsky identified became a working majority for shrinking the rule case by case.
The weakest section is the border discussion. Chemerinsky describes Flores-Montano and Arnold and asks a sensible question about whether laptops differ from luggage, but he does not push on the doctrinal hinge. The border exception rests on smuggling rationales that map poorly onto digital content, and the response should have been to argue that the exception’s logic does not extend, not to gesture at intrusiveness balancing. The Ninth Circuit later sharpened this in Cotterman and the Fourth Circuit in Kolsuz, requiring reasonable suspicion for forensic searches of electronics. Chemerinsky’s instinct was correct but he stops short of articulating the principle that drove the later split.
A few things worth flagging that the speakers underplay. The qualified immunity analysis assumes the Saucier two-step matters. Pearson came down weeks after the talk and made the order discretionary, and the footnote acknowledges this. What the transcript does not anticipate is how Pearson would interact with the clearly-established-law prong. Once courts could skip the merits question, they did, and constitutional law in many areas stopped developing through Section 1983. Plaintiffs’ lawyers feel this every day. Saucier’s two-step was clunky but at least produced precedent. Pearson’s flexibility produced silence in the case law on novel claims.
The speakers also do not address what Atwater and Moore together imply. If probable cause for any offense, however trivial, supports custodial arrest under the Fourth Amendment, and if state-law violations are irrelevant to Fourth Amendment analysis, then Fourth Amendment protection against arbitrary arrest collapses into a single question: did the officer have probable cause for anything. Combined with Whren, the doctrine gives officers near-total discretion to convert any traffic stop into an arrest and search. Blum touches the Whren problem but the package effect goes unmentioned.
The qualified immunity discussion would have benefited from naming the underlying problem more directly. Qualified immunity was a judicial invention, not a statutory term, and the clearly-established-law standard has tightened over time to the point where novel violations almost never produce liability. The speakers note this in passing through Blum’s Eleventh Circuit framework but do not say what Justice Thomas eventually said in his concurrences questioning the doctrine’s foundations. That conversation was not yet available in 2009, so the omission is forgivable, but a reader today notices the gap.
What the transcript does best is teach lawyers how to read a doctrinal landscape that does not announce its rules cleanly. Blum’s repeated point, that you have to know which audience the Court is addressing in a given opinion, is the kind of practitioner wisdom that academic writing rarely captures. For its genre, this is solid work.
‘Korematsu v. United States: A Tragedy Hopefully Never to Be Repeated’ (2011)
Using ‘hopefully’ in this headline is pathetic. “Hopefully” in a title signals a writer who wants the emotional cover of a wish without committing to a claim. A tragedy never to be repeated would be a stance. A tragedy hopefully never to be repeated is a hedge. The word lets him sound concerned without predicting anything or demanding anything.
For a law review article by a sitting law school dean writing about constitutional catastrophe, the hedge reads weak. Either argue the legal and political conditions that produced Korematsu are gone, or argue they persist and the country remains at risk. “Hopefully” picks neither. It gestures at feeling.
Chemerinsky’s own essay actually argues the second position. He lists Guantanamo, material witness detentions, Holder v. Humanitarian Law Project. His text says the pattern continues. His title says he hopes it does not. The title undercuts the argument.
This is mediocre work. Chemerinsky’s scholarship goes downhill from about 2008 on. The lack of rigor in this essay is striking. He’s just phoning it in.
Chemerinsky lands his core point. Justice Black treats national security as the compelling interest, which it was, and then jumps to the conclusion that mass internment by ancestry was necessary to serve it. The means analysis is missing. The England comparison is the right one. A country facing actual invasion risk screened individuals of German descent and interned few. The United States had no excuse for collective punishment by ancestry.
The 1944 date observation matters too. By the time the Court ruled, Midway was two years past and the Pacific war had turned. Black’s “war is about hardship” line had no remaining factual ground.
Beyond those, the piece has problems.
The opening pages read as score-settling rather than analysis. The Roberts and Sotomayor confirmation-hearing complaints do not connect to Korematsu. Both gave the same anodyne testimony every nominee gives. Treating that as a unique pathology of one ideological side is grievance dressed in scholarly clothing.
The empathy detour is worse. Critics of Obama’s empathy criterion did not argue judges should be sociopaths. They argued that empathy as a judicial criterion lets the judge import personal sympathies into legal analysis. Chemerinsky knows this. The sociopath line is a debater’s trick.
His own framework partly collapses on the third criterion. He concedes the Court has not relied on Korematsu in later equal protection cases. Then he tries to fold the case into a broader pattern of wartime overreach. But that pattern preceded Korematsu, as he himself notes. So the doctrinal-impact case fails by his own measure. The argument would be stronger if he conceded the third prong and rested on social impact and craft.
His selection of poorly reasoned cases tracks his priors. Bush v. Gore appears. Griswold appears in a hedged way. Roe v. Wade does not, despite serious craft critiques from liberal scholars like John Hart Ely. A symposium on bad reasoning should not let political alignment screen the examples.
Holder v. Humanitarian Law Project as a modern Korematsu is a stretch. Material support of designated foreign terrorist organizations is not the same category of harm as racial internment of citizens. He needs the equivalence for rhetorical force, but the cases differ on every dimension that drove his original argument.
He misses the deepest internal contradiction in Black’s opinion. Korematsu announced that racial classifications are immediately suspect and warrant the most rigid scrutiny, and that racial antagonism can never justify them. The case then upheld a program built on racial antagonism. The test the opinion originated contradicts the holding the opinion delivered. That is a stronger craft critique than what Chemerinsky provides, and the doctrinal afterlife of Korematsu lives in the strict-scrutiny half of that contradiction, not in the holding.
Two factual notes. The claim that German-Americans and Italian-Americans escaped similar treatment on the east coast overstates things. The United States interned thousands of German and Italian nationals and imposed travel restrictions on Italian-American residents in California. The scale was smaller and the racial element absent, which is his real point, but the categorical claim is too strong.
He also leans on Manchester’s popular history for the human narrative when the 1984 coram nobis findings give him a sharper weapon. Judge Patel’s order documented the government’s suppression and alteration of evidence about Japanese-American loyalty, including the Ringle Report. That record indicts the case at the level of the factual premises Black accepted, which is the level where bad Supreme Court decisions are hardest to defend.
The piece works as a symposium talk with footnotes. As sustained scholarship it leans on rhetoric where argument was available.
‘A Fixture on a Changing Court: Justice Stevens and the Establishment Clause’ (2012)
Chemerinsky writes as advocate and mourner, not as analyst. He lost Van Orden 5-4 in 2005, and this essay sits inside that loss. The structure tells you what kind of essay this is. Two-thirds catalogs Stevens’s votes. The defense of those votes runs about five pages, and Chemerinsky concedes it falls short of full argument.
The framing claim, that Stevens stayed consistent while the Court moved, reads as neutral but plays partisan. You can rephrase it: Stevens occupied the leftmost position when he arrived and never moved off it, while the rest of the bench drifted toward positions closer to the historical record. Same facts, different valence. Chemerinsky picks the valence that flatters his subject.
Part III rests on two arguments, both familiar and both contestable. The freedom-of-conscience argument leans on Madison’s Memorial and Remonstrance, which opposed a tax to support clergy. Stretching that to Ten Commandments monuments and Christmas displays asks the original argument to carry weight it might not bear. Madison did not think a courthouse Decalogue equaled a tithe. The inclusion argument, O’Connor’s outsider/insider frame, depends on a psychological test that cuts both ways. Aggressive secularism makes religious citizens feel like outsiders in their own country. Chemerinsky never addresses this symmetry.
The most striking gap concerns history. Scalia and Thomas grounded their accommodationism in Founding-era practices: congressional chaplains, Thanksgiving proclamations, Sunday closing laws, prayers at the opening of Congress. Chemerinsky notes their view exists. He does not engage it. For an essay defending a constitutional reading, that absence matters. The historical record is the accommodationist’s strongest card, and the strict separationist has to play against it, not around it.
Chemerinsky also barely treats Breyer’s Van Orden concurrence, which holds the interesting middle position. Breyer asked how long the monument had stood, who donated it, what surrounded it. He treated Establishment Clause questions as fact-bound and prudential rather than rule-driven. Stevens’s strict separationism cannot accommodate this approach. Neither can Scalia’s accommodationism. Breyer’s view might prove the most durable in practice because it lets judges duck the hard theoretical questions Chemerinsky and Stevens want to force.
The Stevens-as-consistent thesis obscures something else. Stevens’s separationism reached its rhetorical peak in dissents: Pinette, Van Orden, Salazar. He won less and dissented more as time went on. This pattern shows not consistency holding firm against drift but a shrinking faction speaking with growing bitterness as it loses ground. Chemerinsky frames this as steadiness. Read another way, it is decline narrated as principle. The Newdow footnote complicates the consistency thesis further. Stevens wrote the majority dismissing the Pledge challenge for lack of standing. He chose not to face the question on the merits, possibly because the strict separationist answer required striking “under God” and that conclusion was politically untenable. Chemerinsky calls it “one possible exception” and moves on.
The closing tribute to Stevens’s decency and absence of sarcasm reads as implicit shot at Scalia. That is fair enough. Scalia’s opinions could be cruel. But Chemerinsky uses the comparison to import temperamental virtue into doctrinal correctness. A judge can be civil and wrong. Stevens’s decency tells you nothing about whether the wall metaphor describes the First Amendment or distorts it.
What the essay does well: it gives a clean catalog of where Stevens stood across thirty-five years of cases. As research aid for someone writing on Stevens or Establishment Clause doctrine, it earns its space. As advocacy for the strict separationist view, it concedes its own thinness. Chemerinsky knows he has not made the case. He says so. The question is why he wrote a defense piece without bringing his strongest defense.
The likely answer: the strongest defense is no longer available in the form he wants. The historical record cuts against strict separation. The doctrinal trend cuts against it. Public opinion cuts against it. Stevens’s view survives mostly as nostalgia among legal academics who came of age during its dominance from 1947 to 1980. Chemerinsky writes the elegy. The essay’s real subject is loss.
‘The Elusive Quest for Value Neutral Judging: A Response To Redish and Arnould’ (2012)
Chemerinsky scores some clean hits but leaves his own position underdeveloped.
His sharpest move is the recursion problem. Every justice frames her opinion as Level I analysis. Every dissent calls the majority Level II. The distinction collapses at the point of application. He cites Heller, Roe, and Lochner as cases Redish and Arnould treat as Level II overreach, then shows how each can pass as a good-faith identification of values underlying ambiguous text. He has the better argument here. The Second Amendment text is a puzzle. “Liberty” in the Due Process Clause has carried autonomy interests since the early twentieth century. “Liberty” in 1905 included contract freedom. A defender of any of these decisions can write a Level I opinion. A critic of any of them can call it Level II. The label tracks the reader’s politics.
He also lands on the selectivity charge. Scalia and Thomas claim originalism but ignore strong originalist arguments for race-conscious remedies and against corporate political spending. If originalism only binds when it produces conservative outcomes, it functions as a rhetorical posture rather than a constraint.
The straw person charge has force too. Few scholars defend the radical deconstruction Redish and Arnould call nontextualism. Most agree that clear text binds. The hard cases all turn on open-textured provisions where every methodology converges on something like reasoning from values plus history plus precedent plus consequences. Redish and Arnould’s binary obscures the landscape.
Where Chemerinsky weakens his hand is the affirmative side.
He treats the countermajoritarian difficulty as solved by historical survival. “Our system of popular sovereignty has survived.” That serves as observation, not argument. The system has also survived slavery, Lochner, Korematsu, and Citizens United. Survival differs from legitimacy.
His Bolling defense gives the game away. He says reading equal protection into the Fifth Amendment must be permissible because the alternative produces an undesirable result. The federal government should not escape equal protection requirements. Therefore the methodology that says so cannot stand. This is the move Redish and Arnould worry about. The desired outcome dictates the method. Chemerinsky’s candor earns respect, but it confirms their fear rather than answering it.
He also dodges the deeper question Redish and Arnould raise. If methodology cannot constrain value choices, what does? Chemerinsky’s answer comes to nothing beyond having the substantive conversation about which values are right. But that converts constitutional law into raw politics conducted by nine lawyers in robes. He needs to say more about why this arrangement deserves obedience from the political branches and the public. He gestures at “judges insulated from majoritarian politics” as a feature, though insulation cuts both ways. Insulated from accountability is also insulated from the people the document claims to represent.
A stronger version of Chemerinsky’s position might concede that methodology constrains in limited fashion while still picking out approaches that constrain better than others. Some methods generate more determinate answers in more cases. Some impose stronger reason-giving requirements. Some require more deference where text and history run out. Redish and Arnould reach for one such approach. Chemerinsky’s reply that it fails to eliminate value choices does not show that it fails to constrain them at all. He slides from “imperfect constraint” to “no constraint” without doing the work in between.
The piece reads as a lawyer’s brief. He sets up his targets, knocks them down, and walks off. The harder task, defending an account of judicial legitimacy that admits unavoidable value choices without collapsing into pure politics, he leaves for someone else.
His final move, that the conversation should focus on which values the Constitution protects and how to apply them, counts as a methodological position in its own right. It says method does not count and only substance does. That fails. How a court reaches a result shapes which results count as legitimate, how lower courts apply precedent, how political branches predict and respond to judicial action, and how citizens understand the document. Method is part of substance.
‘Government Duty to Protect: PostDeShaney Developments’ (2014)
The article does double duty. It teaches § 1983 lawyers how to win post-DeShaney cases. It also catalogues how often plaintiffs lose. Read straight, the piece is a practitioner’s guide. Read for tone, the piece is a case against the doctrine it describes.
Chemerinsky cites Brennan and Blackmun’s dissents at length and approvingly. He notes that the Fourth, Fifth, and Sixth Amendments impose affirmative duties on government. He tags Pinder as among the most restrictive readings of DeShaney without explaining why other readings might be wiser. He tells the reader the post-DeShaney cases have “truly tragic facts” and parades the burned children, the raped passenger, the hypothermia victim, and the drunk man rendered quadriplegic one after another. The reader keeps score. The government keeps winning.
What the article hides is as instructive as what it shows. Chemerinsky never engages the conservative rationale for DeShaney. Rehnquist’s bright line between negative liberty and affirmative duty rests on a theory of constitutional government and a federalism intuition that state tort law, not federal due process, handles these injuries. Chemerinsky treats the line as artificial without engaging the reasons a court might draw it. The Wisconsin Department of Social Services failed Joshua DeShaney. Wisconsin tort law could have been the venue. The constitutional question and the moral question are not the same question.
The structure of the piece reveals Chemerinsky’s working method. He moves through doctrine by listing cases, restating their facts, and extracting tests. Three requirements for state-created danger. Three areas of custody. The Equal Protection alternative, blocked by Washington v. Davis and Geduldig. The reader leaves with a checklist. This is what makes his casebook the field’s standard. He converts doctrinal complexity into ordered rules a student or practitioner can carry into court.
The Equal Protection section deserves attention. He explains the domestic violence theory clearly, then explains why it almost never wins. Geduldig holds that discrimination against pregnant persons is not gender discrimination because non-pregnant persons include both sexes. He describes the reasoning without calling it absurd. The reader is supposed to see the absurdity. He trusts his audience to draw the conclusion he will not state.
The piece predates Town of Castle Rock v. Gonzales (2005), which closed another door Chemerinsky leaves open here, the property interest theory based on mandatory enforcement statutes. Castle Rock might have made this article darker. The Supreme Court told Jessica Gonzales that her restraining order against her ex-husband, mandatory under Colorado law, gave her no property interest in police enforcement when he kidnapped and murdered her three daughters. The pattern this article describes continued and tightened.
A note on the doctrinal architecture itself. The state-created danger exception sits uneasily with DeShaney’s holding. If the state takes a drunk passenger’s keys and abandons her on a highway at night, the state has acted, and the action endangered her. Brennan’s dissent argued that DeShaney could be characterized the same way. Refusing to investigate the abuse complaints over two years was action, not inaction, when the state had set up a child protective services program. The lower courts use the action/inaction line in Wood, Davis, and Munger to find liability where DeShaney refused. The Supreme Court has not policed this border. Chemerinsky notices this without saying it. He shows the doctrine is unstable and lets the reader see the instability.
One last point. The deliberate indifference standard does the heaviest work in this whole area, and Chemerinsky flags but does not press the question of why it is subjective in the prison context (Farmer v. Brennan) and objective elsewhere. The split tracks no obvious principle. It tracks the Court’s intuition that prison administrators deserve more deference than social workers, school officials, or street cops. That intuition is a policy choice dressed as constitutional law. The piece points the reader toward this without saying so.
‘Procedural Due Process Claims’ (2015)
This is a clean teaching transcript that does what teaching transcripts should do. Chemerinsky lays out the three-question framework, walks through the controlling cases under each, and tells the audience where the hard problems sit. As a map for practitioners encountering procedural due process for the first time, it works.
The framework itself is sound and has held up. Deprivation, life-liberty-or-property, and what process is due remains how courts and casebooks teach this material. Where Chemerinsky is most useful is in flagging the cases that practitioners under-read. Daniels gets cited for the negligence-is-not-enough proposition and then dropped, but Chemerinsky correctly pairs it with Davidson and then bridges to Lewis to show that the mental-state question splits along an emergency/non-emergency line. The pleading advice that follows is the kind of thing a CLE audience needs: allege intent if you can, allege deliberate indifference in non-emergencies, and do not allege negligence. That is practical guidance grounded in doctrine.
The Parratt discussion is the strongest section. Chemerinsky walks through the original holding, explains why commentators worried it would swallow Section 1983 by collapsing constitutional claims into adequacy-of-state-remedy questions, then shows how Hudson v. Palmer extended the logic and how Zinermon limited it. The four limits he extracts from Zinermon are the right four, and the random-and-unauthorized-versus-policy distinction is the load-bearing one. His warning that defense lawyers should still watch for Parratt expansion proved correct in some circuits, though the Supreme Court never went where Justice Kennedy’s Albright concurrence pointed. The Pena v. Mattox point about state actors blocking access to state remedies is a useful corollary that shows up in police-misconduct cases where the state itself is the obstacle.
The liberty-and-property section is where the analysis runs into the harder questions Chemerinsky himself flags. The shift from rights/privileges to reasonable-expectation-of-continued-receipt is a real doctrinal move, and Roth is correctly identified as the hinge. The problem he names but does not fully sit with is that the reasonable-expectations test lets the government define liberty and property out of existence by writing the right disclaimers into contracts and regulations. Bishop v. Wood makes that explicit, and Chemerinsky’s advice to defense counsel — prevent expectations from forming — is correct as advocacy but unsettling as constitutional theory. If the government can avoid due-process obligations by drafting around them, the protection rests on government drafting choices rather than on any substantive notion of what counts as liberty or property. The Court has not resolved this tension and probably cannot without rethinking Roth.
The Sandin discussion deserves the attention he gives it. The shift from reasonable-expectation analysis to atypical-and-significant-hardship in the prison context was a doctrinal break, and Chemerinsky reads Rehnquist’s reasoning correctly. The incentive-to-not-write-regulations argument is the candid one. Prisons gained liberty-interest exposure precisely because they tried to constrain official discretion through written rules, and the doctrine penalized them for it. Rehnquist’s solution was to detach liberty from regulatory expectations and tie it instead to a substantive measure of how bad the deprivation is relative to ordinary prison life. The cost of that move shows in the cases Chemerinsky cites: 197 days in segregation in Delaney, three years in Bonner, and courts still finding no atypical hardship. The in-custody/out-of-custody distinction he draws from the cases is a useful practitioner heuristic, and Young v. Harper fits cleanly within it.
The work-release split between the Second Circuit in Kim v. Hurston and the Eighth Circuit in Callender sits exactly where Chemerinsky places it. That kind of circuit split on a recurring fact pattern usually signals an issue ripe for Supreme Court attention, though in this area the Court has stayed quiet.
The Mathews v. Eldridge section is the weakest, less because Chemerinsky gets anything wrong than because Mathews itself does not give much purchase. A three-factor balancing test where each factor cuts independently and judges weigh them however they please is not a doctrine so much as an invitation to ad hoc decision-making. Chemerinsky acknowledges this with the line about courts having enormous discretion. He could have pushed harder. Mathews in practice tends to reward government interests in administrative efficiency, especially after the Court’s increasing concern with cost-benefit analysis in the regulatory state, and plaintiffs win Mathews arguments mostly when the deprivation is severe and the additional procedure is cheap. That pattern is worth naming.
The Loudermill point is correctly identified as the load-bearing one against Justice Rehnquist’s Arnett plurality. The bitter-with-the-sweet theory would have collapsed procedural due process into whatever procedure the government chose to provide, and the Court rejected that. But the rejection is partly formal. Once Roth lets the government control whether a property interest forms in the first place, the government can achieve much of what the bitter-with-the-sweet theory would have delivered without ever reaching the procedure question. Loudermill preserved the courts’ role in defining process while Roth surrendered the prior question. Chemerinsky does not quite name this tension.
The closing critique of American Mutual Insurance v. Sullivan is the sharpest analytical move in the piece. Rehnquist’s reasoning that the workers had no property interest in payment for non-necessary medical expenses begs the question. Whether the expenses were necessary was the disputed issue. Saying the plaintiff loses on the property-interest question because the defendant’s characterization of the underlying merits is correct is a circular move. Chemerinsky catches this, and it is the kind of doctrinal sleight-of-hand that academic readers should flag and practitioners should remember when they encounter it. The Court has done this elsewhere, defining the right at the level of the disputed facts so that the right disappears whenever the defendant’s version of those facts is accepted.
Two things the transcript does not cover that a reader today notices. First, it predates the major recent procedural-due-process developments around algorithmic decision-making and administrative determinations made by automated systems. The Mathews framework was built for human bureaucracies and human hearings, and the question of what process is due when an algorithm makes the initial cut is now alive in unemployment, public benefits, and criminal-justice contexts. Mathews in 1976 did not anticipate this and Chemerinsky in 2000 was not yet writing about it.
Second, the analysis assumes the rights/privileges distinction is dead. It is mostly dead in formal doctrine, but the substance returns through Roth’s reasonable-expectations framework. A government job is now a property interest because the government has structured employment to create expectations, and a benefit is property because the statute creates entitlement. The substantive distinction between core liberty and government largess that the rights/privileges line tracked has not vanished. It has just migrated into the reasonable-expectations inquiry. Chemerinsky describes the doctrinal shift without examining whether the underlying conceptual problem actually moved.
What the transcript does best is teach lawyers how procedural due process actually litigates. The sequence-of-questions approach, the pleading advice on mental state, the warning to watch Parratt even after Zinermon, the in-custody/out-of-custody heuristic in the prison cases, and the American Mutual circularity catch are all the kind of thing a practitioner gets value from. As a teaching document it earns its keep.
‘No Immunity: Race, Class, and Civil Liberties in Times of Health Crisis’ (2016)
The essay appears as a review of On Immunity by Eula Biss (b. 1977). It performs a more ambitious task. The authors conduct a constitutional and historical anatomy of how American jurisprudence converts public fear into legitimate state power. Biss’s reflections on vaccination, maternal anxiety, and bodily vulnerability supply the occasion. Goodwin and Chemerinsky use that occasion to excavate a continuity running through American legal history. Public-health emergencies, they argue, repeatedly become the means by which preexisting racial, class, and nativist anxieties acquire formal legal sanction.
The central claim transcends the observation that abuses occurred. The authors show that public health has functioned as a morally elevated vocabulary through which older hierarchies reassert themselves without appearing as hierarchy. Disease provides the legitimating language of exclusion. The polluted body becomes a transferable metaphor that attaches to immigrants, poor Whites, Black Americans, disabled women, drug users, homosexuals, foreigners, and any population imagined as threatening the integrity of the social order.
The essay therefore reads as a study in biopolitical governance rather than a narrow constitutional critique. The state does more than regulate disease. It regulates belonging. It distinguishes bodies presumed safe from bodies presumed contaminating. The line between epidemiology and social purification grows unstable.
That instability reaches its most disturbing expression in Buck v. Bell (1927), the Supreme Court decision upholding compulsory sterilization. Buck v. Bell stands as a catastrophic opinion in American constitutional history because it shows how readily public-health reasoning migrates into civilizational engineering. Carrie Buck (1906–1983), falsely represented as genetically feebleminded, became the vehicle through which the Court constitutionalized eugenics. Justice Oliver Wendell Holmes Jr. (1841–1935) declared, “Three generations of imbeciles are enough.”
Goodwin and Chemerinsky show with devastating clarity that Buck did not emerge as a grotesque anomaly detached from mainstream constitutional reasoning. Holmes grounded the sterilization regime in Jacobson v. Massachusetts (1905), the foundational vaccination case authorizing compulsory smallpox inoculation. The conceptual move was catastrophic. If the state could compel vaccination to protect society from viral contagion, Holmes reasoned, then the same principle was “broad enough to cover cutting the Fallopian tubes.” The logic of disease prevention expanded into the logic of hereditary purification.
That transformation marks a profound theme of the review: the migration of legal rationale from biological contagion to social contagion. The state stopped merely shielding citizens from pathogens and began immunizing society against undesirable populations. Poverty became hereditary defect. Disability became pollution. Criminality became degeneration. The category of public welfare quietly turned into a doctrine of social hygiene.
The shift carries weight beyond historical curiosity. Coercion is unavoidable in liberal states during emergencies. The deeper danger lies in conceptual elasticity. Once collective welfare rises above bodily autonomy, political systems face the temptation to redefine what counts as a threat to the collective body.
Goodwin and Chemerinsky return to the metaphor of pollution because it shows how fear acquires legal form. The polluted body is never merely medical. It is symbolic. During slavery and the Jim Crow era, Black Americans appeared as diseased and as uniquely suited to disease. The review recounts the grotesque historical practice of referring to smallpox as “Nigger itch,” a phrase that encouraged Whites to imagine racial immunity and dismiss vaccination. Disease became racialized. Infection became moralized. Public-health neglect grew socially acceptable because the afflicted population had already suffered symbolic degradation.
The same grammar attached to immigration policy. The treatment of Ellis Island and Angel Island here dismantles the sentimental mythology of American immigration. These were not gateways to freedom in any uncomplicated sense. They operated as quarantine stations and detention regimes designed to sort desirable from undesirable bodies.
Medical inspection at these ports operated as a technology of civic filtration. Public-health screenings fell disproportionately on third-class passengers and steerage immigrants, while elites passed through on the presumption of cleanliness. One sees the emergence of selective immunity as a social construct. The state did not distribute suspicion equally. Wealth, Whiteness, and education served as presumptive cleanliness. Poverty and foreignness served as indicators of contamination.
That asymmetry remains a major continuity between historical and contemporary public-health governance. Elite populations receive treatment as autonomous decision-makers exercising personal choice. Marginalized populations receive treatment as administrative problems requiring supervision. The discussion of vaccination uptake demonstrates the point with particular force.
The review complicates the standard account of vaccine refusal. Under-vaccination emerges from radically different social conditions depending on class position. Wealthy White parents often refuse vaccination from ideological distrust of pharmaceutical corporations or government authority. Poor Black mothers, by contrast, frequently under-vaccinate from structural instability: homelessness, fragmented medical care, lack of transportation, mobility between jurisdictions, the inability to leave low-wage jobs, and inconsistent recordkeeping.
That distinction exposes how liberal societies translate structural deprivation into moral failing. Privileged refusal counts as skepticism or parental autonomy. Poor under-vaccination counts as irresponsibility or neglect. Both produce epidemiological vulnerability. The difference lies not in public-health consequence but in social interpretation.
The criminalization of poverty thus becomes a hidden operation of public-health governance. Institutional failures disappear into behavioral language. A mother lacking transportation becomes “noncompliant.” Housing instability becomes medical irresponsibility. Structural inequality translates into administrative deviance.
The same pattern runs through the treatment of immigration. Chinese immigrants in the late nineteenth and early twentieth centuries appeared not merely as foreigners but as biological and moral contaminants linked to opium addiction, sexual deviance, and racial degeneration. Goodwin and Chemerinsky show how public-health language lent scientific legitimacy to anxieties about race mixing, labor competition, and national identity.
The Yellow Peril panic shows how thoroughly medical and racial discourse fused. Chinese immigrants took the blame for White Americans’ opium addiction. White women’s contact with Chinese men became a sign of civilizational decay. Miscegenation appeared as a kind of epidemiological corruption. Disease metaphors transformed racial panic into hygienic necessity.
The Supreme Court reinforced these hierarchies in Ozawa v. United States (1922) and United States v. Thind (1923). The judiciary became an arbiter of racial fitness for citizenship. Courts selectively invoked anthropology and pseudoscience to determine who counted as sufficiently White for inclusion within the national body. The judiciary participated directly in the medicalization of belonging.
A great strength of the review is its refusal to confine these forces to the distant past. The authors insist that contemporary public-health crises activate the same symbolic structures, now in more bureaucratic and less openly racialized forms.
The discussion of the 2014 Ebola panic illustrates the point. The arrival of a single Liberian man, Thomas Eric Duncan (1972–2014), triggered hysteria disproportionate to any epidemiological reality. African children faced mockery as “Ebola kids.” Students from unaffected countries lost access to schools. Educators who had merely traveled through Dallas faced suspension or isolation. Politicians demanded border closures and quarantines untethered from scientific evidence. The risk that mattered was not exposure but symbolic association. West African identity became contaminated.
The Duncan case shows how implicit bias operates during emergencies. Duncan arrived at a Texas hospital with a high fever and a recent travel history from Liberia, yet hospital staff sent him home initially. His family later argued that race contributed to the inferior treatment he received. Whether or not one accepts that claim in full, the broader sociological point holds: emergencies intensify reliance on heuristics.
Under conditions of fear and uncertainty, institutional actors lean more heavily on cognitive shortcuts. Race, class, accent, immigration status, and assumptions about credibility become informal triage criteria even among professionals who consciously reject racism. Modern public-health systems therefore do not require explicit bigotry to produce unequal outcomes. Bias becomes systemic, diffuse, and administratively embedded.
That reality creates difficulties for constitutional law. Equal-protection doctrine still orients itself toward intentional discrimination. Explicit racial exclusions are easier to litigate. Implicit bias, by contrast, operates probabilistically through discretionary judgment, institutional culture, resource allocation, and differential assumptions about trustworthiness or compliance.
Goodwin and Chemerinsky thus expose a paradox. Modern liberal governance condemns overt racism while preserving the institutional conditions that reproduce racialized disparities. The language becomes technocratic rather than openly biological, but the asymmetries endure.
The review’s treatment of judicial behavior during crises carries equal weight. Courts, the authors argue, repeatedly fail to serve as checks during periods of panic. Fear degrades judicial skepticism. Judges defer excessively to executive claims of necessity, scientific expertise, and emergency authority.
The pattern recurs with disturbing consistency. Buck v. Bell ratified sterilization. Korematsu v. United States (1944) upheld internment. Post-9/11 courts often deferred to expansive detention and surveillance regimes. During pandemics, judges frequently accept speculative harms and uncertain evidence rather than bear responsibility for catastrophic outcomes.
The problem is structural rather than moral. Emergencies create epistemic asymmetry. Governments claim privileged access to urgent intelligence and scientific expertise. Judges fear the consequences of intervention if official warnings prove correct. Under such conditions, constitutional scrutiny weakens precisely when coercive power expands most aggressively.
Goodwin and Chemerinsky identify moments of judicial resistance. They praise cases such as that of nurse Kaci Hickox, where courts recognized that quarantine orders rested more on panic and political pressure than on clear evidence. Such decisions illustrate what constitutional rigor demands during emergencies: continual insistence on empirical justification rather than symbolic reassurance.
Yet the rarity of such rulings underscores the broader warning. The grammar of public health stays dangerous because it allows fear to masquerade as necessity. Governments need not articulate overt hatred. They need only invoke uncertainty, contagion, and collective vulnerability. Once those concepts dominate public consciousness, extraordinary powers move toward normalization.
Goodwin and Chemerinsky avoid collapse into simplistic anti-state libertarianism. They reject antivaccine politics and concede the legitimacy of public-health intervention. They do not claim that contagious disease is imaginary or that governments should remain passive during epidemics. They insist that coercive interventions must survive rigorous constitutional and empirical scrutiny.
The distinction matters because any serious theory of public health must confront tragedy. Smallpox, polio, measles, and Ebola are not social constructions. Epidemics devastate vulnerable populations and overwhelm institutions. Public-health authority is therefore necessary.
But necessity is precisely what makes such authority dangerous. Emergencies intensify civilizational impulses toward purification, exclusion, and categorization. Liberal societies repeatedly divide populations into trusted and suspect bodies. Crises accelerate the process because fear simplifies moral judgment.
The enduring achievement of the review lies in showing how quickly public-health discourse can serve as a secular substitute for older languages of hierarchy. The polluted body travels across eras because it satisfies a deep political desire to locate danger within identifiable populations. Disease becomes a way of narrating social anxiety.
Goodwin and Chemerinsky argue that constitutional democracy demands resistance to that temptation. Before infringing bodily autonomy or civil liberties, the government must demonstrate not merely good intentions but necessity and the absence of less restrictive alternatives.
The demand may sound procedural. It is moral at its root. It insists that emergencies do not erase personhood. It rejects the recurring fantasy of social purification through exclusion. And it recognizes that the gravest danger during health crises is often not the disease but the political desire to convert fear into hierarchy and hierarchy into law.
‘Pregnancy, Poverty, and the State’ (2018)
The piece arrives as a book review but functions as a theory of tiered citizenship, a critique of liberal constitutional formalism, an indictment of American welfare and healthcare administration, and a warning about state intrusion into bodily autonomy.
The argument runs as follows. Reproductive privacy in the United States stratifies by class. Wealthy women experience privacy as insulation. Poor women experience pregnancy as administrative exposure. The disparity is not accidental. It sits inside the architecture of the modern American state.
The provocative claim is not that poor women face barriers to reproductive healthcare. Mainstream liberals accept that proposition. The authors argue that poor women, especially poor women of color, possess no privacy rights at all because the state does not regard them as morally entitled to such rights. The constitutional order remains formally universal while operationally unequal.
The piece sits in a long tradition of American legal realism. The authors reject the idea that rights can be understood through appellate doctrine or constitutional text alone. A right exists insofar as institutions make it exercisable in practice. If exercising a right requires thousands of dollars, interstate travel, legal sophistication, transportation, stable employment, childcare, and freedom from bureaucratic surveillance, then the right ceases to function for large portions of the population.
The essay attacks a foundational assumption of liberal constitutionalism: that formal recognition equals practical existence.
The opening invokes Martin Luther King Jr.’s (1929-1968) 1966 Planned Parenthood speech. The framing places reproductive autonomy inside the civil-rights tradition rather than the narrower terrain of culture-war politics. King tied family planning to “freedom and dignity,” especially for Black Americans trapped in poverty. Goodwin and Chemerinsky revive this framework to argue that reproductive autonomy cannot be separated from broader questions of citizenship, racial hierarchy, and material inequality.
The opening move is strategic. It places reproductive rights inside the moral lineage of anti-subordination constitutionalism rather than libertarian individualism. The question is not whether individuals possess abstract negative liberties. The question is whether vulnerable populations possess sufficient institutional standing to exercise autonomy at all.
From this point forward, the review examines how rights decay through institutional asymmetry.
The American constitutional system has produced a dual-track model of privacy. Middle-class and upper-class women encounter reproductive healthcare as a protected zone of confidentiality and choice. Poor women encounter it as a site of surveillance, scrutiny, and coercive intervention. The distinction is juridical and sociological, not merely economic. Wealth functions as a hidden constitutional variable.
Bridges distinguishes a moderate claim from a strong claim. The moderate claim is that poor women possess privacy rights formally but cannot exercise them. The strong claim is more radical: poor women have been disenfranchised from privacy because society does not recognize them as proper bearers of autonomous personhood.
Goodwin and Chemerinsky find the strong formulation compelling because it captures the institutional realities Bridges observed during her ethnographic fieldwork.
That fieldwork forms the empirical backbone of the review. Bridges embedded herself in a New York City medical center serving poor pregnant women. She documented how healthcare institutions subjected these women to humiliating scrutiny, bureaucratic suspicion, delays, breaches of confidentiality, and intrusive questioning. The review treats these encounters as manifestations of a deeper moral structure rather than isolated administrative failures.
Constitutional deprivation no longer appears primarily through overt legal exclusion. It emerges through institutional culture.
Here the review becomes sharp sociologically. The state rarely acts alone. It governs through networks of delegated authority. Hospitals, clinics, social workers, prosecutors, and welfare administrators become dispersed instruments of reproductive governance. Medical institutions internalize policing functions.
The Blanca Borrego episode crystallizes the pattern. Borrego arrived at a gynecological appointment seeking treatment for severe abdominal pain. Clinic staff coordinated with law enforcement, admitted officers through a back entrance, delayed her treatment for hours, and transformed the examination room into an arrest site.
The symbolic weight of this episode is large. The physician-patient relationship ceases to function as a protected liberal sphere. Medical confidentiality becomes conditional. Healthcare institutions become porous to state power. The clinic no longer serves only as a site of care. It becomes an extension of the administrative-security apparatus.
The review’s language of “institutional betrayal” acquires force from this pattern. The danger arises not only from overt state repression but from the quiet incorporation of surveillance logic into institutions historically associated with healing and trust.
Privacy becomes a luxury good in this framework. Affluent patients purchase insulation through private healthcare, elite legal representation, geographic mobility, and social capital. Poor women remain exposed to integrated networks of bureaucratic monitoring. Their reproductive lives become legible to prosecutors, welfare agencies, immigration authorities, and child-protection systems in ways wealthier women’s lives do not.
The review anticipates broader contemporary debates about digital surveillance, predictive governance, and administrative integration. Poor women become the testing ground for constitutional erosion because they possess the fewest buffers against institutional penetration.
This is the deeper meaning of the “canaries in the coal mine” image. Goodwin and Chemerinsky issue a structural warning, not merely a plea for compassion. The state develops and normalizes intrusive powers against politically weak populations before extending those precedents outward.
The discussion of coerced medical interventions illustrates the pattern sharply. Cases of compelled C-sections, fetal-protection prosecutions, and involuntary medical supervision reveal a jurisprudence in which fetal interests increasingly override maternal autonomy. These doctrines are deployed first against poor women, addicted women, immigrant women, or women of color. Once institutional actors normalize the underlying logic, broader categories of women become vulnerable.
Constitutional norms erode incrementally. Rights are rarely abolished in a single dramatic moment. They are hollowed out administratively through procedural burdens, funding restrictions, institutional discretion, and moral reframing.
This gradualist theory of constitutional decay is among the review’s stronger contributions.
Reproductive rights have not disappeared formally. Courts continue to affirm their existence rhetorically. The practical conditions necessary to exercise them collapse. The result is constitutional nominalism: rights remain symbolically intact while operationally inaccessible.
The treatment of Harris v. McRae, Maher v. Roe, and related funding cases illustrates the point. The Court distinguishes between prohibiting abortion and declining to subsidize it. Formally, the right survives. Materially, poor women often cannot exercise it.
The authors attack this distinction relentlessly. They reject the Court’s assumption that poverty exists independently of state action. Poverty itself is politically structured through labor-market inequality, racial stratification, educational disparities, housing segregation, healthcare access, and voter suppression. Once poverty is understood as institutionally produced rather than naturally occurring, state refusal to fund reproductive healthcare no longer appears neutral. It becomes participation in an already coercive social order.
The argument reveals deeper philosophical commitments. The authors reject classical liberal distinctions between negative and positive liberty. Freedom requires material preconditions. A formally recognized choice without resources to exercise it is not autonomy.
The historical sections situate modern reproductive politics inside the longer history of racial governance. Goodwin and Chemerinsky invoke slavery, Jim Crow, forced sterilization, and eugenics not merely as rhetorical analogies but as institutional precedents. They argue that American governance has long treated marginalized women’s fertility as a legitimate object of state management.
Under slavery, Black women’s reproductive capacities served directly as engines of capital accumulation. Their bodies generated property. During the eugenics era, poor women, Black women, Native American women, disabled women, and immigrant women were subjected to coercive sterilization campaigns justified through pseudo-scientific theories of social hygiene. The “Mississippi appendectomies” performed on Black women without informed consent became symbols of a state treating marginalized fertility as administratively disposable.
The authors argue that contemporary reproductive governance retains structural echoes of these earlier systems even where ideological vocabulary has changed. Modern TRAP laws, welfare surveillance, fetal-endangerment prosecutions, and clinic restrictions are not identical to slavery or forced sterilization. The underlying institutional premise remains recognizable: certain women’s reproductive lives are viewed as matters of legitimate bureaucratic supervision rather than zones of autonomous citizenship.
The historical framework explains the essay’s intense moral language. One cannot fully grasp the rhetoric of “contempt,” “moral corruption,” and “inhumanity” without grasping the historical arc the authors trace. Contemporary reproductive restrictions emerge, in their account, from a long institutional tradition of hierarchical governance over marginalized populations.
Here the review becomes most vulnerable.
The authors read state motives through frameworks of domination, stigma, and hostility. Competing moral considerations receive comparatively little attention. The review largely dismisses fetal-protection arguments as forms of punitive governance without grappling with serious ethical questions surrounding fetal injury, neonatal addiction, and state responsibility toward children.
Debates over abortion funding are treated primarily as expressions of contempt for poor women rather than conflicts of taxpayer conscience, competing theories of constitutional obligation, or moral disagreement about fetal life.
The pattern gives the review rhetorical force. It also narrows its engagement with pluralistic democratic conflict. Policy disagreements moralize quickly. Institutional actors who oppose the authors’ position appear less as participants in contested ethical debates than as agents of coercive hierarchy.
Stephen Turner’s (b. 1951) work on convenient beliefs illuminates the structure. The belief that opposition to abortion funding equals “moral disregard” rather than competing moral commitments is convenient because it lets the authors avoid engaging the strongest version of the opposing view. The convenient belief tracks coalition rather than evidence. Inside the authors’ professional ecosystem, treating pro-life arguments as serious moral positions held in good faith carries professional cost. Treating those arguments as cover for racial and class animus carries professional reward.
Ernest Becker’s (1924-1974) hero system framework adds another layer. The authors operate inside an academic-legal hero system where “fighting injustice for the marginalized” confers status and meaning. The book review functions as a status-conferring ritual. The intensity of moral language, the invocation of King, the historical analogies to slavery and eugenics: these are not decorations on an argument. They constitute the argument’s social meaning. They tell the relevant audience that the writer is a worthy participant in the hero system that organizes elite progressive legal academia.
Charles Taylor’s (b. 1931) distinction between buffered and porous selves reveals an unstated tension. The argument depicts poor women in two incompatible registers. In one register, poor women are full agents whose autonomous choices the state thwarts. In the other register, poor women are exposed and vulnerable, porous to institutional power, dispossessed of agency. The contradiction is rhetorically useful. The buffered framing supports the demand for negative liberty. The porous framing supports the demand for positive provision. Whichever frame the rebuttal addresses, the other remains available.
John Mearsheimer’s (b. 1947) social-tribal anthropology of The Great Delusion applies. Coalition first, then morality. The authors are not arguing from neutral premises to coalition-supportive conclusions. They start inside a coalition and produce a legal-academic case that supports its priors. That is what most legal-academic argument does. The pretense of philosophical neutrality belongs to the genre’s conventions. The substance is tribal.
Treating the review as a piece of crypsis sharpens this further. The piece presents itself as neutral legal analysis published in the Yale Law Journal. It functions as advocacy. The biological frame applies: the surface markings match the host environment of legal scholarship. The internal organs serve a different purpose. This is not a criticism unique to Goodwin and Chemerinsky. It is what most law review articles do. Naming it allows the reader to assess the piece as what it is rather than as what it claims to be.
Reducing the review to advocacy would miss its enduring intellectual value.
The central achievement lies in exposing how constitutional inequality operates through differential insulation from institutional power. The affluent possess privacy not simply because the law protects them more generously on paper. They possess privacy because they avoid the institutional spaces where surveillance and coercion concentrate.
Poor women encounter the state continuously through welfare offices, public hospitals, child-protection systems, Medicaid bureaucracies, prosecutors, housing authorities, and criminal courts. Rights become contingent because exposure becomes continuous.
The insight extends far beyond reproductive politics. The constitutional order Goodwin and Chemerinsky describe characterizes the broader American administrative state. Digital surveillance, predictive policing, algorithmic welfare enforcement, immigration monitoring, and healthcare data integration all operate disproportionately against populations with minimal institutional shielding.
The result is a stratified constitutional order in which citizenship operates unequally. Affluent citizens experience the Constitution primarily as protection against intrusion. Poor citizens experience it as conditional negotiation with bureaucratic authority.
That asymmetry is the review’s enduring contribution. The essay is not merely about abortion, contraception, or reproductive medicine. It is about the sociology of rights in an unequal society. It asks whether constitutional liberties can remain operative when material conditions, institutional structures, and administrative practices determine who can exercise them.
The authors’ answer is pessimistic. The American constitutional system preserves rights symbolically while distributing them hierarchically in practice.
The challenge they pose is real even where the framing is partisan. Constitutional democracies are not judged solely by the elegance of their legal doctrines. They are judged by how institutions treat those with the fewest resources to resist them. That standard cuts in directions the authors might find uncomfortable when applied evenhandedly. The same logic that condemns surveillance of poor pregnant women condemns surveillance of poor parents whose political or religious commitments fall outside elite consensus. The same logic that condemns institutional dispossession of poor women’s privacy condemns institutional dispossession of communities whose values the authors’ coalition opposes.
A reviewer applying the framework with full consistency would arrive at conclusions broader than the ones the authors draw. The piece moves toward those conclusions and then stops at the boundary of coalition comfort. That is where the analysis remains incomplete and where the reader must finish the work the authors leave unfinished.
‘The Transgender Military Ban: Preservation of Discrimination Through Transformation’ (2019)
The essay stands as a strong example of contemporary progressive constitutional scholarship: historically grounded, empirically dense, rhetorically disciplined, openly normative. Goodwin and Chemerinsky treat the Trump Administration’s ban on transgender military service not as a contested personnel rule but as a study in how institutional discrimination adapts under pressure. Building on Reva Siegel’s analysis of preservation-through-transformation, they argue that liberal institutions seldom defend hierarchy through openly exclusionary speech. Instead, the institutions translate stigma into newer vocabularies of professionalism, readiness, medical fitness, and bureaucratic neutrality.
The thesis appears on the first page and never wavers. The transgender ban, the authors contend, lacks empirical justification and continues a familiar American pattern: marginalized groups face exclusion from military service under the banner of operational necessity. The arguments raised against transgender service members echo earlier arguments raised against Black servicemembers, women, gays, and lesbians. The vocabulary changes. The institutional logic stays still.
What separates this essay from narrower doctrinal work is the fusion of three modes. Goodwin and Chemerinsky write constitutional law, institutional history, and rhetorical critique at the same time. They argue that the policy violates equal protection. They also argue that institutions convert moral judgments into technical classifications while keeping the appearance of procedural neutrality. The piece functions as constitutional argument, historical genealogy, and a study of bureaucratic language.
The historical framing arrives early. President Trump (b. 1946) announced the policy in 2017 by tweet, citing transgender service as incompatible with military efficiency on grounds of “tremendous medical costs and disruption.” Goodwin and Chemerinsky show that the rationale collapses on contact with evidence. The administration invoked readiness, cohesion, deployability, and fiscal burden, and produced little in the way of proof. Open service had run since 2016 under the Carter policy. The administration could not show degraded effectiveness during that period.
The empirical centerpiece is the RAND Corporation study commissioned by the Department of Defense. RAND found that transgender personnel comprised a small share of the force and that open service might have minimal effects on readiness and cohesion. Annual transition-related health costs ran between $2.4 million and $8.4 million, a sliver of total military health spending. Goodwin and Chemerinsky deploy the figures with care. Rather than argue that the costs are small, they invert the burden. If the state seeks to exclude an entire class from military service, the state must produce evidence stronger than inherited assumptions, political discomfort, or symbolic anxiety.
The essay sharpens when it exposes asymmetries inside the military’s own spending logic. The most striking comparison concerns expenditures on erectile dysfunction medication. The armed forces spend more each year on such prescriptions for heterosexual male servicemembers than on every projected transgender medical service combined. The point is not fiscal. The point exposes what cost was always doing. Cost was never a neutral category. The military tolerates large outlays tied to conventionally masculine identities and does not treat them as threats to readiness or cohesion. Transition-related care drew controversy not because of its scale but because of the social status of the group receiving it.
That asymmetry sets up one of the essay’s strongest claims. Institutions apply technical criteria selectively. Readiness, efficiency, cohesion, and cost look objective on paper. In practice, social filtering decides which expenditures get scrutinized and which pass. The Defense Department did not discover a principled objection to expensive medical accommodation in 2017. The administration mobilized fiscal language against a politically vulnerable group while leaving comparable or larger expenditures untouched.
The historical architecture carries equal weight. Exclusionary arguments recur across generations with surprising consistency. Appeals to morale, discipline, cohesion, and operational necessity once justified racial segregation. The same appeals later opposed women in combat and open gay service. Goodwin and Chemerinsky document how military authorities predicted institutional collapse if integration occurred and how those predictions kept failing.
The treatment of racial integration carries more than analogical weight. The authors show that military institutions have mistaken inherited social prejudice for objective military expertise. When President Truman ordered desegregation, officials warned that integration might undermine morale and combat effectiveness. RAND’s later observations on military integration matter here. The military adapted to racial integration despite fierce resistance. It later adapted to expanded roles for women and to open gay service. Goodwin and Chemerinsky reject the idea that transgender exclusion sits on uniquely technical or biological ground. They place it inside a recurring institutional cycle: military authorities defend exclusionary practices as operational necessities, and later generations reread those policies as expressions of prejudice.
Contemporary legal scholarship leans on technocratic vocabulary, procedural abstraction, and densely hedged formulations. Goodwin and Chemerinsky write differently. The prose runs unusually direct for elite legal scholarship. Declarative sentences dominate. The authors place agency and burden on institutional actors rather than diffuse responsibility through passive constructions.
That choice carries philosophical content. The essay critiques the language of administrative neutrality. Goodwin and Chemerinsky argue that institutions preserve hierarchy by translating moral judgments into technical classifications. The rhetoric mirrors the critique. Rather than adopt depersonalized managerial vocabulary, the authors emphasize history, stigma, and hierarchy.
The treatment of medical terminology shows the same care. The essay attacks not only the policy but the conceptual vocabulary used to defend it. Goodwin and Chemerinsky distrust institutional classifications that present themselves as medically inevitable. The discussion of gender dysphoria sits at the center of that concern.
The military policy effectively coerced transgender servicemembers into accepting a psychiatric diagnosis to keep their jobs. The authors argue that this requirement revived older cultural frames that pathologized LGBTQ identities as mental illness. They prefer terms such as logic, pattern, history, and causal chain rather than vocabularies that imply scientific inevitability or impersonal automation. That preference has substance. Calling discrimination an automatic process can imply inevitability, as if hierarchy emerges from neutral systems rather than moral choices. Goodwin and Chemerinsky preserve moral visibility. The classifications are not objective scientific outputs. They are political and institutional decisions dressed in professional expertise.
That sensitivity to language explains why the essay resists administrative euphemism throughout. Bureaucratic systems sanitize exclusion through technical vocabulary. The military no longer says that transgender individuals are morally unfit or socially undesirable. The exclusion runs through deployability metrics, medical standards, diagnostic categories, and healthcare burdens. Goodwin and Chemerinsky strip away that rhetorical insulation and put the moral judgment back on the page.
The handling of LGBTQ history shows a deliberate refusal to isolate transgender issues into a narrow identity silo. Goodwin and Chemerinsky do not present transgender servicemembers as a discrete category cut off from broader American political development. They embed the ban inside the longer institutional history of military discrimination, including segregation, exclusion of women, and the Lavender Scare. That structural integration ranks among the article’s stronger methodological choices. Many identity-based legal disputes get framed as specialized niche controversies disconnected from constitutional traditions. Goodwin and Chemerinsky reject that framing. The grammar of exclusion stays remarkably stable across target populations. The object of exclusion changes. The institutional rationales repeat.
The Lavender Scare discussion serves the argument well. The federal government under Eisenhower conflated homosexuality with sexual perversion and national security risk. Linking the transgender ban to anti-gay purges shows continuity in the state’s management of sexual and gender nonconformity. The state portrays stigmatized identities as threats to institutional stability and presents exclusion as prudent administrative governance.
The critique of the Supreme Court carries weight. Goodwin and Chemerinsky devote substantial attention to the Court’s 2019 decision to stay lower-court injunctions blocking the ban before full appellate review. They describe the move as procedurally extraordinary. The Court intervened despite the absence of a circuit split and despite the government’s failure to show immediate operational harm.
That analysis looks prescient in retrospect. The authors identified early signs of broader controversy over the Court’s expanding reliance on emergency-docket interventions in politically charged disputes. Goodwin and Chemerinsky read the stay not as judicial modesty but as ideological repositioning by a newly configured conservative majority.
More fundamentally, the essay treats the ban as a test case for the future of LGBTQ constitutional protection after Justice Anthony Kennedy’s (b. 1936) retirement. Decisions such as Windsor and Obergefell encouraged many observers to believe that constitutional momentum favored expanding LGBTQ rights. Goodwin and Chemerinsky caution against that assumption. Formal victories in one domain can obscure retrenchment in another. The preservation-through-transformation frame applies not only to military policy but to constitutional development.
Liberal societies seldom reverse rights directly. They narrow, compartmentalize, or administratively reclassify them. The Court can celebrate same-sex marriage while permitting new forms of exclusion directed at transgender individuals. Equality advances unevenly. Doctrinal victory in one area does not guarantee institutional transformation elsewhere.
Goodwin and Chemerinsky write in an openly advocacy register. The article repeatedly attributes the policy to prejudice and bias and sometimes leaves insufficient room for engagement with the strongest opposing arguments. The military is not a typical civilian institution. Courts have historically extended substantial deference to military judgments on readiness, discipline, and personnel standards. Cases such as Rostker v. Goldberg established a tradition of judicial reluctance to second-guess military expertise. A critic might argue that Goodwin and Chemerinsky understate the institutional distinctiveness of the armed forces and the judiciary’s deferential posture.
Operational concerns get partial treatment. RAND’s aggregate findings strongly support the conclusion that open transgender service poses minimal systemic costs. Critics might still raise narrower questions about deployability during medical transition, hormone-related physiological effects, physical standards in sex-segregated combat units, or privacy in military housing. Goodwin and Chemerinsky treat many such concerns as pretextual. Some readers may find the treatment insufficiently attentive to the complexities of military administration.
Even where the essay overstates its case, it forces a sharp jurisprudential question: when does administrative caution become a vehicle for preserving inherited social hierarchy? The question reaches well beyond transgender military service. It applies to constitutional disputes over immigration, policing, surveillance, voting rights, and public health governance. Modern institutions seldom defend exclusion openly. They translate hierarchy into the language of management, expertise, and technical necessity.
The article fits inside Chemerinsky’s larger constitutional project. Like his work on standing doctrine, reproductive autonomy, voting rights, and federal power, the essay reflects deep suspicion of institutional barriers that narrow equal citizenship while presenting themselves as procedurally neutral. The transgender ban becomes another case of state power using technical categories to mask substantive inequality.
The piece also reflects Goodwin’s longstanding interest in how legal and medical institutions regulate identity through diagnosis, classification, and administrative control. The attention to psychiatric labeling, medical gatekeeping, and bureaucratic stigma carries the imprint of her broader work on reproductive justice and public health governance.
The essay matters less for its doctrinal conclusions than for its institutional sensibility. Goodwin and Chemerinsky refuse to separate constitutional law from history, rhetoric, and sociology. Legal analysis must account for the adaptive capacities of institutions. Discrimination evolves linguistically before it evolves legally.
That insight gives the essay enduring relevance. The article concerns less one presidential policy than the modern grammar of exclusion. Hierarchy survives by translating prejudice into administrative expertise, medical classification, fiscal accounting, and institutional management. Goodwin and Chemerinsky expose the translation process and insist on restoring moral visibility to systems that prefer to describe themselves as merely technical.
Constitutional Law: 2020 Case Supplements
Chemerinsky executes. He does not argue.
The format stays minimal. A short transitional paragraph identifies a case and tells the reader which casebook page it updates. Then a long opinion excerpt. Then another case. He almost never comments on the law. He almost never tells the reader what to think.
He claimed in the writing essay that casebooks aim at “ideological neutrality.” Read this supplement and you see what neutrality means in practice. Not balance. Suppression of his voice. The dissents get full treatment. Thomas in June Medical runs four or five pages. Alito’s dissent in New York Rifle runs longer than the per curiam majority. The neutrality holds because Chemerinsky removes himself, not because he balances each side.
That mode of neutrality serves his coalition more than vocal advocacy ever could. The casebook gets adopted at Berkeley and at Notre Dame. Federalist Society professors use it. ACS professors use it. Aspen prints it. Chemerinsky cashes royalties from both sides. The supplement publishes annually, which means recurring revenue and recurring adoption.
His op-eds inflame. His casebook reassures. The two products serve different markets and protect each other. A Berkeley dean who writes only op-eds becomes Robert Reich (b. 1946). A Berkeley dean who writes only casebooks disappears into the library. Chemerinsky writes both, and the casebook keeps him adoptable while the op-ed keeps him relevant.
Notice the case selection. June Medical, Trump v. Vance, Trump v. Mazars, Espinoza, Our Lady of Guadalupe, Seila Law, Chiafalo, Ramos. These are the politically loaded cases of the term. He could have foregrounded technical jurisdiction or standing rulings. He chose blockbusters. The preface admits this directly: “a term of blockbuster decisions.” The supplement gets built around what students will remember and what professors want to teach. Selection is editorial even when commentary stays silent.
His preface mentions Roberts joining the majority in 97 percent of the cases and dissenting only twice all term. That fact cuts against the standard liberal complaint about the Roberts Court. He lets it stand. He does not editorialize. The neutrality holds within those tight bounds.
The supplement represents the institutional half of his writing portfolio. The op-ed pays in coalition prestige. The casebook pays in royalties and adoptions. The casebook stays neutral so it stays adoptable. He outsources his voice to whoever wrote the opinion.
‘What’s Standing After TransUnion LLC v. Ramirez’ (2021)
This reads on its surface as a doctrinal article about Article III but the piece is shorter and sharper than that. Chemerinsky treats one Supreme Court decision as the leading edge of a structural change in the relation between Congress and the federal judiciary, and the article argues that the change is dangerous, lawless, and transformative.
The argument runs in three steps. First, Chemerinsky shows that for most of the modern era the Supreme Court has affirmed congressional authority to create rights whose violation supplies an injury sufficient for Article III standing. Second, he reads TransUnion LLC v. Ramirez as breaking from this settled framework by requiring that any congressionally created right have a “close historical or common-law analogue.” Third, he predicts a wide range of federal statutes will become harder, perhaps impossible, to enforce in federal court if the holding is taken at face value.
The first step rests on a long line of cases the article reconstructs in compressed form. Trafficante v. Metropolitan Life Insurance recognized standing to challenge housing discrimination on the basis of statutorily created interracial-association interests. Havens Realty Corp. v. Coleman extended this logic to fair-housing testers. FEC v. Akins held that Congress could create a right to political-committee disclosure information and that denial of that information was an Article III injury. Linda R.S. v. Richard D. and Warth v. Seldin had earlier acknowledged the same principle in dicta. None of the rights at issue had common-law roots. Each rested on a legislative judgment that a modern social problem deserved legal recognition.
Chemerinsky’s second step turns on close reading of Justice Kavanaugh’s (b. 1965) opinion. The TransUnion majority concedes that Congress may “elevate” injuries that already exist in fact. It denies that Congress may “enact an injury into existence.” The line-drawing test is supplied by historical analogy. A statutory right counts only if it tracks something a common-law or English court would have recognized.
Several problems run through the majority’s reasoning, and Chemerinsky names most of them. He could press further on each.
The first problem is the Court’s selective historicism. The majority treats Anglo-American legal tradition as an inherited reservoir of legitimate injuries. Justice Thomas’s (b. 1948) dissent shows the reservoir is larger than the majority admits. The First Congress passed copyright laws permitting suit without proof of monetary loss. Early federal informer statutes authorized private suits to recover statutory penalties from violators of customs and revenue laws. Qui tam actions, recognized at the founding and confirmed in Vermont Agency of Natural Resources v. United States ex rel. Stevens, allowed bounty hunters to sue without any traditional injury at all. The historical record supports a robust legislative power to create enforceable interests untethered from common-law harm. The TransUnion majority brushes this past, citing the parts of history that fit and ignoring the parts that do not.
The second problem is that the historical-analogue test cannot be applied with the precision the majority claims. Someone has to decide whether a modern injury bears a “close” relationship to a traditionally recognized one. The decision cannot be derived from text or history. It rests on a judgment about social significance. The Court’s defamation analogy in TransUnion shows the difficulty. A false terrorism designation in a credit file might be analogized to defamation, libel per se, breach of contract, breach of fiduciary duty, deceit, or none of these. Choosing among the candidates is a discretionary act. Justice Kagan’s (b. 1960) dissent calls the result the conversion of “a doctrine of judicial modesty into a tool of judicial aggrandizement.” The phrase captures the structural irony. The Court announces restraint and exercises the discretion restraint disclaims.
A third problem concerns the boundary between dignitary and economic injury. The majority treats reputational harm as cognizable when a false report reaches third parties and as non-cognizable when it sits in a database awaiting transmission. The line tracks the publication element of common-law defamation. It does not track the realities of contemporary credit and identity infrastructure. Modern adverse credit data shapes downstream decisions through automated processes that do not require any human reader. A consumer placed on an OFAC alert in TransUnion’s system might be denied credit, employment, or housing without anyone outside TransUnion ever seeing the file in a form a defamation court might recognize as publication. The majority’s reasoning forces algorithmic harm into a tort framework built for printed handbills. The fit is poor and the fit will get worse.
A fourth problem, and the one Chemerinsky stresses most, is the implication for federal statutes whose enforceability previously seemed secure. The Freedom of Information Act creates a right to government records. No such right existed at common law. The Family and Medical Leave Act creates job-protected leave. No common-law antecedent exists. The Civil Rights Act of 1964 creates a right against discrimination by places of public accommodation. The common law tolerated such discrimination for most of American history. The Religious Freedom Restoration Act creates a statutory right to religious exemptions Justice Scalia’s (1936-2016) majority opinion in Employment Division v. Smith had read out of the First Amendment. Each of these statutes rests on a legislative judgment that a harm deserves a remedy the common law does not supply. Each is now exposed to a standing challenge.
Chemerinsky lists further examples drawn from lower-court case law. Plaintiffs have established standing under the Farm Labor Contractor Registration Act for failure to give written notice of a strike. Employment testers have established standing under Title VII. Securities holders have established standing under section 16(b) of the Securities Exchange Act of 1934 to recover short-swing profits. Recipients of unwanted prerecorded calls have established standing under the Telephone Consumer Protection Act. Class plaintiffs have established standing under the Fair and Accurate Credit Transactions Act for receipts that violate truncation rules. None of these injuries map onto a common-law tort. All rest on a congressional judgment that the harm is real and that a federal cause of action makes sense.
If TransUnion governs, the body of cases just listed sits on contested ground. Defense counsel in any suit alleging a bare statutory violation now has a serious motion. Plaintiffs must prove not only violation but historical pedigree.
Chemerinsky’s prediction has begun to come true in lower courts. Spokeo, Inc. v. Robins on remand produced uneven results. Lower courts have split on whether risk of future harm satisfies concreteness, on whether procedural rights survive without an underlying substantive injury, and on whether information privacy claims under the Video Privacy Protection Act, the Cable Communications Policy Act, and the Driver’s Privacy Protection Act survive standing review. The doctrinal disarray Justice Alito (b. 1950) created in Spokeo has now been deepened.
The next step in Chemerinsky’s argument concerns separation of powers. The TransUnion majority claims its rule preserves separation of powers by limiting the Court to traditional cases or controversies. Chemerinsky inverts the claim. He argues that a Court restricting Congress’s power to create enforceable rights enlarges the judicial role at the legislature’s expense. The argument has force. Article I gives Congress lawmaking power. Article III gives federal courts the judicial power over cases and controversies. If the second clause is read to swallow the first whenever a federal right departs from common law, separation of powers is undermined, not preserved.
The deeper point Chemerinsky might press more sharply concerns the asymmetry of the holding. The Court accepts congressional power to expand standing for some plaintiffs through cases like Massachusetts v. EPA, where Justice Stevens’s (1920-2019) majority opinion treated state interests in regulating greenhouse gas emissions as cognizable on relaxed standing terms. The Court accepts standing for environmental aesthetic interests after Sierra Club v. Morton and United States v. SCRAP. The Court accepts standing in Trump v. Hawaii based on family separation despite no traditional analogue. The Court accepts informational standing in Akins. The list of recognized injuries the Court has read into Article III without common-law foundation is long. TransUnion does not extend this hospitality to consumer plaintiffs alleging credit-reporting violations. The selectivity needs an account, and the majority does not supply one.
The article gestures at this asymmetry. A sharper version might press the issue. Standing doctrine in the federal courts has long been a doctrine of judicial intuition dressed in formal language. Aesthetic injuries in environmental cases pass. Competitive injuries in market-regulation cases pass. Family-separation injuries in immigration cases pass. Statutory consumer-protection claims fail. The pattern is hard to reconcile with neutral application of any consistent test, including the historical-analogue test the Court announces.
The article also touches lightly on the federalism puzzle the holding creates. The puzzle deserves more weight. State courts hearing federal claims are not bound by Article III standing rules. ASARCO v. Kadish recognized this point. A federal statute may be enforceable in a California state court when the same plaintiff lacks standing across the street in federal court. State courts may then issue judgments interpreting federal law that the Supreme Court must take on certiorari and may reach merits the federal courts would have rejected on standing grounds. The law develops in state forums by accident of jurisdiction. Federal claims become geographically and procedurally fragmented. The very statute the Supremacy Clause makes binding nationwide loses uniform enforceability because of an Article III rule that does not bind state courts. The result is bizarre, and Chemerinsky could press it further.
The argument is, on the whole, persuasive. A few qualifications deserve attention.
Chemerinsky’s preferred rule has its own difficulties. If Congress may create any injury it likes, with no judicial check, the Article III floor might collapse. A statute purporting to create standing for any citizen to sue any employer for any deviation from any regulation comes close to the citizen-suit problem Justice Scalia identified in Lujan v. Defenders of Wildlife. The dissenters in TransUnion concede some limit. Justice Thomas’s dissent ties the limit to the public-versus-private distinction. Private rights established by statute support standing without further injury. Public rights require concrete harm. The distinction has historical pedigree, going back to Marbury v. Madison and the writs cases of the early Republic. Chemerinsky does not engage this version of the limiting principle in depth. A complete reply to Justice Kavanaugh might run through it.
The article treats Spokeo as the first move in the trajectory and TransUnion as the consolidation. The earlier history is more complex. Lujan in 1992, Steel Co. v. Citizens for a Better Environment in 1998, and Summers v. Earth Island Institute in 2009 each tightened standing in ways that previewed TransUnion. The trajectory is older than Spokeo, and the political character of the trajectory deserves comment. Standing has been a tool of conservative judicial preference for at least three decades. Chemerinsky knows this. The article might say so plainly.
The predictions about FOIA, FMLA, and Title II are powerful but possibly overstated. The Court might confine TransUnion to the Fair Credit Reporting Act and similar statutes whose injury claims rest on bare procedural violations. The Court might construct historical analogues with the generosity it shows in cases it likes. A FOIA denial might be analogized to refusal of access to public records, a recognized common-law interest in many jurisdictions before the Constitution. An FMLA violation might be analogized to breach of an implied employment term. Title II discrimination might be analogized to refusal of service by common carriers and innkeepers, which the common law in fact regulated. The historical-analogue test is plastic enough that the Court can find analogues when it wants them and refuse them when it does not. This plasticity confirms Chemerinsky’s deeper point about judicial discretion, and it might soften some of the alarm about specific statutes.
The article should engage the structural argument the majority does not make but that lurks beneath the holding. Federal courts have limited capacity. Class actions for statutory damages aggregate small injuries into large claims that change settlement incentives. The Fair Credit Reporting Act class in TransUnion totaled 8,185 members and produced a judgment in the tens of millions. Defenders of TransUnion might argue that standing doctrine is doing the work that procedural class-certification rules cannot do well. The argument is unattractive on doctrinal grounds. It is real as a matter of institutional pressure. A complete account of TransUnion explains why standing doctrine, rather than Federal Rule 23, has become the vehicle for the Court’s anxieties about aggregate consumer litigation.
The article might say more about the analytic relation between standing and merits. The Court has often described standing as logically prior to merits. The historical-analogue test collapses the distinction. Whether a statutory right has a common-law antecedent is a substantive judgment about the harm Congress chose to remedy. Asking it at the standing stage means deciding the substance of the claim under the label of jurisdiction. The collapse is a separation-of-powers problem, because it lets the Court reject claims it dislikes without ever reaching the merits.
These qualifications do not undermine the article’s core argument. They strengthen it. Chemerinsky shows that TransUnion threatens a settled understanding of congressional power to create enforceable rights. The holding rests on selective historicism, on a reputational-harm framework ill-suited to modern data systems, on a separation-of-powers claim that runs the wrong way, and on a discretion-disguising test the Court will apply at will. The article diagnoses the problem clearly. A reader closing the piece is left with a sharper question than the one Chemerinsky poses. The question is not whether TransUnion will limit federal-court enforcement of statutory rights. The question is whether the Court will retain the discipline to apply its own announced rule to plaintiffs it favors as well as to plaintiffs it does not. The honest answer, on the evidence so far, is that it will not.
The implication is sobering. Standing doctrine in the federal courts has become a vehicle for substantive preference dressed in jurisdictional language. Chemerinsky’s article makes the case against TransUnion on doctrinal terms. The case against the doctrine in its broader form, as a tool the Roberts Court uses to filter the suits it wants to hear from the suits it does not, awaits a longer treatment. Chemerinsky has cleared the ground for that longer treatment. The next book, and one hopes there will be one, can build on it.
‘The Supreme Court and Racial Progress’ (2022)
This essay records the exhaustion of postwar liberal faith in judicial reform. Chemerinsky writes from a moment when the federal judiciary no longer appears capable of serving as the engine of progressive racial change. The result reads at once as indictment, elegy, and strategic recalibration.
For half a century, American liberalism treated the Supreme Court as a quasi-priestly institution. Brown v. Board of Education, Miranda v. Arizona, Gideon v. Wainwright, Loving v. Virginia, and Reynolds v. Sims functioned as civic scripture. The Warren Court embodied the belief that insulated constitutional elites might harmonize American democracy with universal egalitarian principles. Courts would restrain local prejudice, protect minorities against majoritarian excess, and bend the constitutional order toward justice.
Chemerinsky’s article unintentionally destabilizes that mythology even while mourning its decline. His survey of Court race jurisprudence shows that the Court has more often protected racial hierarchy than dismantled it. From slavery to Jim Crow to school segregation to racialized policing to voting restrictions, the Court repeatedly constrained efforts at substantive racial equality. The Warren Court emerges, in this telling, not as the culmination of constitutional awakening but as a contingent exception sandwiched between longer periods of judicial retrenchment.
The article exposes a deeper crisis within liberal constitutionalism. The trouble is not that the Roberts Court is conservative. The trouble is that the foundational assumptions of postwar liberal jurisprudence now appear institutionally fragile, philosophically contested, and historically incomplete.
The conflict turns on a disagreement about the meaning of constitutional equality. Chemerinsky implicitly embraces an anti-subordination vision of equal protection. Under this view, the Constitution exists not merely to prohibit explicit racial classifications but to dismantle systems of entrenched racial hierarchy. Equality is substantive and historical. Constitutional analysis must account for the cumulative effects of slavery, segregation, exclusion, discriminatory lending, unequal schooling, and racially asymmetrical state power.
The Roberts Court increasingly embraces anti-classification constitutionalism. Under this view, the Constitution prohibits governmental distinctions by race regardless of motive or historical context. Equality means procedural neutrality. The state must not sort citizens by race except under the narrowest imaginable circumstances.
These are not merely doctrinal alternatives. They rest on rival constitutional cosmologies. Anti-subordination treats racial inequality as historically produced and institutionally embedded. Anti-classification treats racial neutrality as the central constitutional virtue regardless of underlying social disparities. One framework prioritizes historical remediation. The other prioritizes formal symmetry.
The conflict surfaces throughout Chemerinsky’s analysis, nowhere more clearly than in his treatment of Brown. The decision occupies a sacred position within American constitutional memory, but Chemerinsky correctly notes its conceptual narrowness. The opinion focused on the psychological harms segregation inflicted upon Black children rather than articulating a comprehensive theory of racial subordination. The Court never explained why segregation violated the essence of equal citizenship.
That omission carried substantial consequences. Because Brown avoided a robust anti-subordination theory, later Courts could reinterpret equal protection through a formalist lens detached from historical hierarchy. Once equal protection came to mean opposition to racial classification rather than opposition to racial domination, race-conscious remedies became increasingly vulnerable.
This evolution culminates in Chief Justice John Roberts’s (b. 1955) declaration in Parents Involved in Community Schools v. Seattle School District No. 1 that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The sentence crystallizes the anti-classification worldview. It sounds morally universal and intuitively fair because it abstracts present policy from historical context. It treats all racial classifications as symmetrical regardless of whether they subordinate or remediate.
The anti-subordination critique asks an unavoidable question. Symmetrical relative to what historical baseline? The Roberts formulation treats current social arrangements as morally neutral starting conditions rather than as products of centuries of legally enforced racial ordering. The state appears as detached observer rather than historical architect. The constitutional problem becomes contemporary race-consciousness rather than inherited racial hierarchy.
The anti-classification model often functions as an erasure of history through formalism. The state did not merely observe racial segregation. It created, enforced, subsidized, and reproduced it through law. American racial geography emerged from government action: slavery, Black Codes, Jim Crow, racially restrictive covenants, redlining, FHA lending policy, exclusionary zoning, urban renewal, segregated schooling, highway construction, and discriminatory policing. Modern disparities in wealth, neighborhood quality, educational opportunity, and political influence did not arise spontaneously from neutral markets or voluntary cultural preferences. State power structured them.
Anti-classification doctrine brackets that history. Once historical causation drops out of constitutional analysis, race-conscious governmental action appears presumptively suspect. The remedy for hierarchy resembles the hierarchy.
The transformation appears most clearly in school-desegregation jurisprudence. Chemerinsky’s treatment of San Antonio Independent School District v. Rodriguez and Milliken v. Bradley deserves even greater emphasis because these decisions established the architecture of modern American inequality. They did not merely fail to equalize opportunity. They constitutionalized fragmentation.
Rodriguez held that education is not a fundamental right under the Constitution and that poverty is not a suspect classification. Milliken sharply restricted interdistrict desegregation remedies. Together the rulings converted municipal boundaries into instruments for preserving unequal distributions of educational resources, tax bases, security, and opportunity.
American inequality after these rulings operates territorially rather than explicitly racially. After overt racial discrimination became constitutionally delegitimized, exclusion migrated into jurisdictional structures. School districts, zoning regimes, municipal tax systems, and suburban incorporation became instruments through which inequality might reproduce itself behind formally neutral boundaries.
Milliken proved consequential because it treated school districts as morally autonomous entities rather than as products of metropolitan racial history. White flight, federal housing policy, highway construction, discriminatory lending, suburban incorporation, and exclusionary zoning had already produced racially fragmented metropolitan regions. The Court treated district boundaries as natural and inviolable. Once interdistrict remedies became largely unavailable, affluent suburbs could preserve superior schools and resources while urban districts remained racially isolated and underfunded. Municipal borders became legal insulation devices. The Court ensured that the quality of educational opportunity available to children might depend on accidents of birth and geography. Wealthy districts retained concentrated tax bases and social capital. Poor districts inherited concentrated disadvantage. The Constitution, according to Rodriguez, imposed no obligation upon the state to equalize the disparities.
Modern inequality became embedded not through explicit discrimination alone but through decentralized territorial governance. The territorialization of inequality helps explain why modern equal-protection doctrine often appears incapable of addressing contemporary racial disparities. The Court’s jurisprudence remains optimized for identifying explicit discriminatory intent while modern inequality is generated structurally through housing patterns, funding rules, institutional sorting, bureaucratic discretion, and cumulative disadvantage.
Chemerinsky correctly emphasizes the devastating impact of Washington v. Davis and its progeny. Once equal-protection claims required proof of discriminatory intent rather than discriminatory impact, structural inequalities became constitutionally insulated from challenge. Modern institutions rarely produce openly racist declarations. Discrimination operates bureaucratically and diffusely. Hiring systems, school funding formulas, policing practices, zoning decisions, and administrative procedures generate racially disparate outcomes without explicit expressions of racial animus.
Intent doctrine narrows constitutional reach because proving subjective discriminatory motivation is difficult. Personnel Administrator of Massachusetts v. Feeney deepened the problem by holding that awareness of disparate consequences is insufficient. Plaintiffs must show that government actors adopted policies because of their discriminatory effects rather than merely in spite of them. The doctrinal asymmetry between historical reality and constitutional enforceability is profound. Structural inequality may remain visible sociologically while remaining almost impossible to remedy legally.
Chemerinsky’s discussion of Comcast Corp. v. National Association of African American-Owned Media extends procedural narrowing into the modern era. The Court’s insistence on but-for causation reflects a broader judicial trend toward procedural neutralization of substantive rights. Modern judicial conservatism often avoids openly repudiating civil-rights principles. It narrows standing rules, heightens pleading standards, strengthens immunity doctrines, expands arbitration, tightens causation requirements, and raises evidentiary thresholds. Rights remain formally intact while enforcement becomes increasingly difficult.
The but-for causation standard matters because sophisticated institutional actors rarely generate smoking-gun evidence of discriminatory intent. Modern corporations, universities, governments, and bureaucracies are legally sophisticated. Explicitly racist language is rare. Decisions emerge through diffuse institutional processes. Under rigid but-for standards, plaintiffs may need direct admissions of discriminatory motive to survive dismissal. Courts protect defendants from discovery before institutional behavior can be examined. Civil-rights law remains formally preserved yet operationally weakened. The proceduralization of constitutional conflict reflects a transformation in American legal culture. Contemporary judicial conservatism treats equality claims through managerial and technical frameworks rather than through morally substantive analysis. The focus shifts from social hierarchy to procedural regularity.
The same tension surfaces in affirmative-action jurisprudence. Chemerinsky correctly argues that Regents of the University of California v. Bakke contained the seeds of affirmative action’s eventual collapse. By grounding affirmative action in diversity rather than historical remediation, the Court transformed inclusion from a justice claim into an institutional utility claim. The compromise was unstable from the start.
Under the diversity rationale, Black and Brown students were defended not as historically injured citizens entitled to remedial opportunity but as contributors to pedagogical richness. Diversity became valuable because it improved educational environments for everyone, including White students. The reframing depoliticized affirmative action. Universities justified racial inclusion less as restitution for structural injustice than as enhancement of institutional excellence. Minority students enriched classrooms, broadened perspectives, and improved dialogue.
Once inclusion is justified instrumentally rather than morally, it becomes vulnerable to ideological reversal. A Court committed to strict anti-classification might argue that educational enrichment is insufficient justification for racial distinctions. The diversity rationale rested on fragile aesthetic and managerial logic rather than durable reparative principles. Justice Clarence Thomas’s (b. 1948) critique gains force because the Court avoided grounding affirmative action in historical redress. If race-conscious admissions exist mainly because diversity creates educational benefits, then affirmative action begins to resemble technocratic optimization rather than constitutional justice. The collapse of affirmative action under Students for Fair Admissions v. Harvard represents not simply conservative aggression but the unraveling of an unstable doctrinal compromise decades in the making.
Chemerinsky writes with particular force about racialized policing. His treatment of Terry v. Ohio exposes a contradiction within Warren Court liberalism. Liberal constitutional memory often celebrates the Warren Court as a civil-rights institution. The same Court dramatically expanded discretionary police authority. Terry constitutionalized stop-and-frisk logic through the elastic standard of reasonable suspicion. The decision reflected institutional anxiety as much as constitutional principle. Earl Warren’s (1891-1974) Court faced mounting political backlash, urban unrest, crime panic, and accusations that criminal-procedure rulings were undermining public order.
The result was a compromise between inclusion and control. The Court expanded formal civil rights while increasing state policing discretion. The tension reveals something fundamental about postwar liberal governance. Liberalism often sought racial incorporation without destabilizing social order. When unrest threatened institutional legitimacy, police powers expanded. Chemerinsky is correct that the racial consequences of Terry were foreseeable from the beginning. The NAACP Legal Defense Fund warned about the dangers of discretionary stop authority. Ambiguous standards inevitably acquire sociological meaning through enforcement patterns. Reasonable suspicion sounds neutral doctrinally but operates within unequal social environments.
Whren v. United States intensified these forces by legitimizing pretextual traffic stops. Since traffic codes are nearly universally violable, police effectively gained authority to stop almost anyone at almost any time. Selective enforcement became constitutionally normalized. Formal neutrality concealed asymmetric operation.
Chemerinsky arrives at a sobering conclusion. The Supreme Court might no longer serve as the engine of racial reform. The realization marks a major intellectual shift within liberal constitutional culture. For decades, progressives invested considerable symbolic capital in judicial supremacy. Courts were imagined as the apex institutions of moral rationality within American democracy. The current conservative majority has forced reconsideration of that assumption.
Chemerinsky’s turn toward state constitutions, legislatures, local governments, and political mobilization reflects strategic decentralization. The shift resembles earlier reform movements that relied on distributed institutional ecosystems rather than judicial salvation alone. Marriage equality offers an instructive comparison. Courts mattered, but progress also depended on state-level experimentation, cultural normalization, corporate signaling, media representation, activist networks, and generational change. Reform emerged through layered institutional pressure rather than purely judicial decree.
The broader perspective corrects a central distortion of liberal constitutional memory: the tendency to overstate judicial autonomy. Courts do not transform societies alone. They ratify, accelerate, redirect, or constrain broader political coalitions. Brown mattered. So did mass protest, Cold War geopolitics, civil-rights organizing, federal legislation, executive enforcement, demographic shifts, and media exposure. Judicial opinions gain force when embedded within larger political movements.
The final question raised by Chemerinsky’s analysis becomes unavoidable. Does the Court’s embrace of colorblindness represent commitment to constitutional neutrality, or does it operate to preserve existing hierarchy? The answer is likely both. Many conservative jurists sincerely believe anti-classification doctrine is the only administrable and morally coherent constitutional principle. They fear perpetual racial sorting by the state. They view race-conscious policymaking as corrosive to civic unity and individual equality. For them, colorblindness is not cynical rhetoric but constitutional philosophy.
Sociologically, formal neutrality in a deeply unequal society tends to stabilize inherited asymmetries. If current disparities are treated as baseline conditions rather than products of historical state action, then neutrality becomes conservative in effect even when principled in intention. The enduring conflict between anti-classification and anti-subordination constitutionalism turns on this point. Anti-classification fears endless racial managerialism. Anti-subordination fears the naturalization of inherited inequality. One prioritizes procedural symmetry. The other prioritizes historical remediation. One sees race-conscious intervention as perpetuating division. The other sees refusal to intervene as ratifying hierarchy.
Chemerinsky’s article captures liberal constitutionalism at a moment of exhaustion and transition. The postwar faith that courts might steadily harmonize American democracy with egalitarian ideals has weakened. Judicial supremacy no longer appears politically reliable or philosophically secure. The article reveals something important about American constitutional development. Constitutional meaning is never fixed solely through judicial interpretation. It emerges through conflict among courts, legislatures, bureaucracies, activists, local governments, intellectual movements, media systems, and public culture.
The moral universe does not bend automatically toward justice. Constitutional progress does not unfold linearly through enlightened adjudication. Change requires institutional struggle, coalition building, political pressure, and sustained moral imagination operating across multiple centers of power. Chemerinsky’s essay matters because it recognizes, however reluctantly, that the Supreme Court is not the sole custodian of American democratic possibility. It is one institution within a larger constitutional order whose meaning remains permanently contested.
Worse Than Nothing: The Dangerous Fallacy of Originalism (2022)
The book runs nine chapters and follows a brief structure rather than an academic one: rise, allure, then six “problems” the defendant fails, then the alternative, then the closing emotional appeal. The dean delivers the indictment alone. No co-author. No foreword balancing the argument. The solo posture is the first piece of evidence the alliance frame requires.
Run the four questions.
What coalition does Chemerinsky depend on for status and income? The Berkeley deanship. The AALS presidency he received in 2021. The casebook royalty stream from Aspen, paid every time a constitutional law professor adopts his text. The LA Times opinion page. The ABA Journal column. The ACS speaking circuit. The Yale University Press imprint that produced this book. None of these income streams reward charitable engagement with originalism. All of them reward the book he wrote.
Who does he risk angering by speaking plainly? If he conceded that District of Columbia v. Heller had a serious textual case behind it, that the original understanding of the Fourteenth Amendment is contested in ways that make Brown v. Board of Education hard to defend on Warren Court reasoning, that Larry Solum and Keith Whittington and Will Baude have built originalist theory that survives his chapter three objections, he angers the coalition. The cost is not the deanship overnight. The cost is the soft currency of liberal legal prestige. The invitations thin. The blurbs cool. The faculty meetings get longer.
Who benefits if his framing wins? The post-Warren Court legal liberal coalition that built American constitutional law from the late 1930s through the 1970s. Living constitutionalism is the method under which their preferred outcomes were produced. If no theory of constitutional interpretation can constrain judicial discretion, then the question becomes which discretion you prefer. That question is decided by votes. Votes are won by rallying coalitions. His coalition has been rallying constitutional law faculties for sixty years and built the prestige hierarchy that selects the next generation. They benefit if the field stays his.
What truths might cost him his position? That his own 1989 Harvard Law Review Foreword line—constitutional law is largely a product of the views of the Justices—is an admission that legal liberalism in its triumphalist Warren Court phase imposed values dressed as neutral interpretation. The Federalist Society’s theoretical project drew its power from a real perception that the Warren and Burger Courts had run beyond any text. The book Chemerinsky calls coalition rhetoric on the right has a counterpart on the left, and that counterpart is the casebook on his syllabus.
Now Stephen Turner.
The book treats originalism as a thing with a hidden core. Chapter three hunts the epistemological essence. Chapter four hunts the logical essence. Chapter seven hunts the ethical essence by surveying cases in which originalists abandon the theory. The hunt assumes an object to find. Turner’s anti-essentialism cuts here. There is no object. There are individual originalists with individual habits of argument. Antonin Scalia and Clarence Thomas argue in different ways. Amy Coney Barrett and Neil Gorsuch argue in different ways. Larry Solum’s fixation thesis sits at one corner of the room. McGinnis and Rappaport’s good-original-meaning argument sits at another. Steve Calabresi’s federalism originalism sits at a third. Public objects anchor coordination across these positions: Heller, Bruen, Dobbs, the Federalist Society canon, the Scalia opinions. Circuits of correction run through the chambers, the law reviews, the symposia. The coordination is real. The shared inner essence is a fiction the critic adds so the critique has a target.
This matters for the book’s structure because the seven-problems format requires the target. If originalism is not one thing, the chapters describe seven different fights with seven different opponents who do not all hold the positions Chemerinsky attacks. McGinnis and Rappaport answer the abhorrence problem by pointing to the supermajority requirements that produced the constitutional text. Solum answers the epistemological problem by separating fixation of meaning from constraint on application. Whittington answers the incoherence problem by distinguishing interpretation from construction. The book mentions these moves and dismisses them in pages. The dismissal works only if originalism is the one thing the book treats it as. Once originalism dissolves into a set of individually held positions with public objects in common, each dismissal becomes a separate engagement Chemerinsky has not done.
Turner on convenient beliefs cuts deeper. A convenient belief is one a coalition holds because holding it serves the coalition, maintained through formation rather than evidence. The legal liberal formation runs from constitutional law professors to graduate students to clerks to judges across decades of selection. The formation makes certain conclusions feel forced and others feel naive. From inside the formation, “originalism is just rhetoric” feels like an obvious finding. From inside the originalist formation, “the Warren Court invented rights from nothing” feels equally obvious. Neither party can show the tacit content of the other’s formation. Each formation is enforced by selection at the choke points where the next generation gets credentialed. The Berkeley faculty that votes on tenure shares the formation. The Federalist Society chapter that vets the next clerk shares the other formation. The book reads as a verdict because the audience that buys it has the formation that made the verdict feel obvious before the book opened.
The book’s blind spots are not random. They reflect the specific commitments of the coalition’s founding generation: the Bickel-Wechsler-Tribe-Dworkin axis that built post-Warren Court legal liberalism. Wechsler’s neutral principles problem—how do you defend Brown on principles a court can apply consistently—runs underneath the whole liberal project and the book never quite resolves it. Bickel’s countermajoritarian difficulty haunts chapter eight. Dworkin’s moral reading sits behind chapter eight without being named. The book treats these as solved problems because the formation Chemerinsky received treats them as solved. Originalists were not formed in that lineage. They feel the problems as live. The chapter cannot reach them because the formation cannot reach them.
Now meta-expertise. Turner’s paradox of managerial omniscience says no one can evaluate primary expertise from outside without becoming the primary expert and so collapsing the role. The book reads as meta-expert verdict on a field of primary experts. Chemerinsky aggregates history, doctrine, philosophy of language, and political consequence into a synthesis. The synthesis claims to weigh originalist primary expertise against non-originalist primary expertise and to call the score. The aggregation looks neutral. The aggregation is consensus aggregation in a coalition climate. The legal liberal academy decides whose primary expertise counts: Tribe yes, Bork no, Brest yes, Whittington only as foil. No individual is responsible for the climate. The climate produced the verdict before Chemerinsky wrote it. He performs the verdict. The book is the climate’s brief.
The accountability collapse runs the same way. If the book is wrong, who pays? Yale University Press does not pay. The Berkeley faculty does not pay. The AALS does not pay. The casebook adoption committees do not pay. Chemerinsky does not pay. The book sells, the next casebook edition sells, the next column runs in the LA Times, the next speech runs at the next ACS conference. There is no chain of responsibility along which a wrong call has consequences for the people who made it. Turner’s diagnosis: when responsibility distributes across an aggregation structure, the structure produces failures no one absorbs. The legal liberal climate has produced sixty years of constitutional theory whose track record at the Court is bad. Chemerinsky’s book treats the bad track record as a result of conservative cheating. The Turner reading treats it as evidence the climate’s own primary expertise is weaker than the coalition believes, protected by the diffusion of responsibility that prevents the coalition from learning.
Charles Taylor sharpens this. The book is written from a buffered-self position with no porous concession. Chemerinsky presents himself as a sovereign reasoning subject who looked at the evidence and reached a conclusion. Originalists appear as failed reasoners or hypocrites who mistake their preferences for principles. The porous-self reading: he is constituted by the coalition that formed him. His sense of which arguments feel forced, which feel naive, which truths are settled, comes from forty years inside law schools that selected for his sensibility and that he in turn helped run. The buffered self denies this constitution. The book denies that legal liberalism is itself a coalition formation operating on its members the way originalism operates on its members. He treats his own conclusions as the natural output of an unembedded mind. Mearsheimer’s empirical claim about social constitution exposes that posture as cultural fiction. The fiction does work for the book because the audience also wants the fiction. They want to feel that they reasoned their way to legal liberalism. They did not. They were formed in it. So was he.
Jeffrey Alexander on cultural trauma maps onto the book directly. The trauma narrative runs: the Bork hearings as founding wound, the Reagan-Meese capture as the conversion event, the Federalist Society as the alien institution, the Trump appointments as the second wound, Dobbs as the catastrophe arriving. The book is a carrier-group performance for the legal liberal coalition that experiences these events as injuries to the sacred body of constitutional law. Chemerinsky’s voice carries the trauma forward. The audience reads the book and feels the wound recognized. The recognition consolidates the coalition.
The Watergate ritual structure runs alongside the trauma. Alexander reads Watergate as a civil-religious ritual that put the polluting actor on trial and restored the sacred order. Chemerinsky’s book is the legal liberal counterpart for originalism. He puts the doctrine on trial across nine chapters. He calls the witnesses (Brest, Tribe, Dworkin, Ely). He cross-examines the defenders (Scalia, Bork, Thomas). He sums up. He demands the verdict. The verdict was foregone because the audience tried the case in their formation before the book opened. The ritual confirms the coalition’s identity by re-enacting the founding wound and pronouncing the founding judgment. The book sells because the ritual is satisfying.
Randall Collins puts this on a chain. Constitutional law conferences. ACS meetings. Berkeley faculty workshops. ABA panels. Federal Bar Council dinners. Each ritual generates emotional energy around shared sacred objects: Brown v. Board of Education, Roe v. Wade, Obergefell v. Hodges, the dissents in Heller, Citizens United, Shelby County, Dobbs. The book is both an output of past rituals and an input to future ones. Law school adoption committees will recommend it. Casebook author notes will cite it. The chain reproduces because the chain is what produces the coalition members for whom the chain feels like reason itself.
Ernest Becker on hero systems. Chemerinsky’s hero system is the legal liberal vocation. The constitutional law professor as guardian of rights, equality, dignity. The good guys are Brennan, Marshall, Ginsburg, Breyer, Sotomayor, Kagan. The villains are Bork, Scalia, Thomas, Alito, Gorsuch, Barrett, Kavanaugh. The closing chapter title is hero-system mobilization. We Should Be Afraid is not a description. It is a call to muster. Fear of the opposing coalition winning is the fuel that keeps the hero system running. Without the threat, the meaning of the work declines. The chapter performs the threat at length—Roe falls, then privacy, then religious liberty, then administrative power—because the threat is the resource the system runs on. Dobbs arrived in the year the book published and ratified the threat narrative. The carrier of the warning gains stature. The hero system gains energy.
Now the biological frames.
Niche construction. Legal liberalism built the post-1937 constitutional law field, the casebook industry, the law review prestige hierarchy, the AALS, the clerkship pipelines feeding from elite schools to elite chambers to elite faculties. The niche selects for the kind of mind that finds Chemerinsky’s arguments obvious. Originalism on the right ran a parallel niche-construction project—Federalist Society chapters, Olin Foundation grants, originalist symposia, the Federalist Society judicial pipeline that fed Trump’s appointments—and produced minds for whom Bork’s arguments feel obvious. The book ignores its own niche while attacking the rival niche. The asymmetry is the tell.
Heterosis. The book shows none. The strongest legal-liberal arguments meet in chapter after chapter. Originalist arguments appear only as foils. A hybrid project—legal liberal honesty about originalism’s strengths and originalist honesty about non-originalism’s necessity—might have produced a book that survived its decade. This book picks one parent and refuses the cross. The next decade of constitutional discourse has more interesting hybrids: Will Baude and Stephen Sachs’s inclusive originalism, Adrian Vermeule’s common-good constitutionalism, Jack Balkin’s living originalism. None of these feature in Chemerinsky’s pages because the book is not a contribution to constitutional theory. The book is a coalition performance.
Exaptation. Originalism takes the public’s general sense that law should be predictable, that words should mean what they meant, and exapts it into a coalition vocabulary that does work the originating intuition cannot anticipate. Non-originalism takes the public’s sense that the Constitution must keep up with the modern world and exapts it the same way. Both vocabularies do real work and both produce results the original intuition could not predict. Chemerinsky treats the originalist exaptation as illegitimate while treating his own as natural. Symmetry not granted.
Phenotypic plasticity. The book’s phenotype is the public-intellectual register. Clear sentences. Repeated structure. Named villains. Controlled fear. The dean speaking at orientation has a different phenotype. The LA Times op-ed writer has a third. The luminary author of the Federal Jurisdiction treatise has a fourth. The phenotype is plastic. The genotype is the coalition position. The plasticity is what lets a single brand carry across markets without the markets noticing the same coalition position is sold under each.
The closing observation runs back to the luminary line. A man sells a book by Yale University Press whose argument is that the opposing coalition has corrupted constitutional discourse with rhetoric that performs neutrality while imposing values. The book itself performs the same move. It performs neutrality—the legal scholar surveying the field—while imposing the coalition’s values. He approves the marketing copy that calls him a luminary. He does not approve marketing copy that names him a partisan. The first reading is the coalition’s reading. The second reading is the book’s own reading turned on the book.
The originalist coalition has its own version of the same arrangement. A Federalist Society dinner honors a luminary jurist who delivers an indictment of living constitutionalism dressed as legal scholarship. The two arrangements mirror each other. Each side insists the other side is the rhetoric. The Turner frame says both sides are right about the other and wrong about themselves. The Pinsof frame says this is what coalition vocabularies do. The Ernest Becker frame says the hero systems require the mirror to keep running.
Worse Than Nothing is a strong artifact of one of the two coalitions at a moment when that coalition lost the institutional fight at the Court and needed a brief to keep its members oriented. Yale published the brief. The dean signed it. The luminary delivered it. The audience bought it. The chain reproduces.
Several things in the book do not fit the persona Yale University Press is selling.
The dedication. Worse Than Nothing dedicates not to a law professor, not to a judge he clerked for, not to a constitutional law colleague, but to Earl Bell and David Zarefsky, his high school and college debate coaches. The acknowledgments add the line that outside his parents, these two had the greatest effect on his life. The book is written by a debater, not by a constitutional law scholar. That formation explains the architecture: nine chapters running as a debate case, six numbered “problems” the defendant fails on, an alternative offered, then the closing emotional appeal. Earl Bell coached high school debate at Glenbrook North in Illinois. Zarefsky ran the Northwestern program. Both formed Chemerinsky in policy-debate habit before constitutional law touched him. The book reads the way it does because the author was made into the man he is by competitive forensics, not by Harvard Law. That is a real disclosure. It explains why originalist scholars who read the book come away saying he has not engaged their strongest positions. He has not. Debaters do not engage strongest positions. They engage positions they can defeat in the time available before the next round.
The Preface confession. Chemerinsky opens chapter nine with this line: he has no illusions the book will have any effect on those who believe in the originalist approach. Most polemics pretend persuasion. The author here admits up front that the book is not for the people whose minds it claims to address. The admission is honest. The admission is also telling. It locates the audience in his own coalition and confirms the book functions as coalition technology rather than as cross-coalition argument. Yale University Press knows this. The marketing copy does not say so. The author quietly does.
The 1989 self-citation. He quotes himself from the Harvard Law Review Foreword: constitutional law is now, will be, and always has been largely a product of the views of the Justices. He drops this in chapter nine as if it settles a question. The line is the originalist meta-critique stated by the legal liberal author. Bork made this argument. Scalia made this argument. The Federalist Society’s whole rationale rests on the claim that judges have been imposing their values, and that some method, however imperfect, must try to constrain that. Chemerinsky’s own line says the constraint cannot work. His line is the best argument for the originalist project, not against it. If law is the views of the Justices, then a method that promises to limit those views is at least an attempt at the problem. The book never engages this turn. The author cites his own line and moves on. That move only works in front of an audience that already shares his position.
The tone runs more weary than angry. Compare the book to Cass Sunstein’s Radicals in Robes, which Chemerinsky cites approvingly. Sunstein writes hot. Chemerinsky writes cool, sometimes resigned. The closing chapter predicts catastrophe in a flat voice. The flatness might come from age. He has been at this since 1980. He has watched the originalist project win at the Supreme Court while the books refuting it stack up on his shelf. The book carries the tone of a man who has run the same argument for forty years to a coalition that already agrees. The energy he brings to a Berkeley orientation address is not the energy he brings to this manuscript. The luminary author is tired.
Chapter seven on hypocrisy runs the weakest argument and the most heat. Inconsistency by individual originalists does not refute originalism as a method any more than inconsistency by individual liberals refutes living constitutionalism. Chemerinsky knows this. He runs the chapter anyway. The chapter functions as moral mobilization, not as logical refutation. Debaters know that hypocrisy charges win rounds with sympathetic judges even when they do not defeat the formal argument. The chapter’s prominence in the architecture, sandwiched between the modernity problem and the defense of non-originalism, places it where the closing emotional run begins. The structure is debate craft, not legal scholarship.
Conspicuous absences sit alongside the conspicuous presences. William Baude and Stephen Sachs have built the most analytically serious originalist position of the past decade. Their inclusive originalism gets a paragraph and a dismissal through Eric Segall. Their actual machinery never gets touched. Adrian Vermeule’s common-good constitutionalism, the most interesting recent development on the right, does not appear. Justice Hugo Black, the original textualist on the Court and a New Deal liberal whose textualism produced both liberal and conservative results, does not appear in the book that purports to chronicle originalism’s history. Black would complicate the coalition story by showing that textualism is not coextensive with the conservative project. The book has no place for him. The strongest non-originalist alternatives to Chemerinsky’s own Brennan-Brandeis line, Alexander Bickel’s prudentialism and Felix Frankfurter’s restraint, also do not appear. The defense of non-originalism in chapter eight treats his preferred reading as coextensive with non-originalism itself. Other liberal traditions inside the legal academy never enter the room.
The Lochner problem. If non-originalism leaves judges to consult “modern social needs,” then the Lochner-era judges who consulted their sense of social needs were doing what Chemerinsky recommends. The strongest originalist argument is that Lochner is the predictable output of the method he defends. The book mentions Lochner. The book does not sit with the parallel. A more confident author might have. A debater knows when not to.
Charity to Kennedy. Justice Anthony Kennedy gets treated with measurable gentleness. Kennedy is the swing who delivered Obergefell, Lawrence, the Casey re-affirmation, the technology cases. The book’s coalition position requires charity to him. The charity is not surprising once you see the position. It is surprising as legal analysis, because Kennedy’s reasoning in those cases supplies originalists with their best ammunition: open-textured rhapsody about dignity, autonomy, the right to define one’s own concept of existence. If the book wanted to defend non-originalism on rigorous grounds, Kennedy would be a problem. The book wants the outcomes Kennedy delivered. So the book gives Kennedy a pass.
The Scalia anecdote places the author in originalist rooms. “I once attended an event where he spoke.” Chemerinsky moves in the same physical spaces as the men whose work he attacks. He is on the speaking circuit that includes them. He is not the outsider the book persona implies. The persona is selective. The author and his targets share the same green rooms.
The acknowledgments thank Catherine Fisk, also a Berkeley Law professor. The book emerges from a household with two legal-academic incomes from the same institution. The coalition reproduces at the dinner table. This is not unusual in legal academia, but it is rarely flagged. The book speaks of legal liberalism as a position the author holds. The household speaks of legal liberalism as the air the household breathes.
Whitney Mello, the “spectacular assistant” who “facilitates all I accomplish,” gets a paragraph in the acknowledgments. Most legal academics thank a research assistant for help with a footnote. Few thank a single staff person who facilitates everything. The phrasing tells you the operation runs as a small institution with a chief of staff. The luminary brand we discussed in earlier exchanges has internal staffing. The book is partly a product of that staffing. The acknowledgments name the operation.
The most surprising thing taken whole is the ordinariness of the book. A constitutional law dean at Berkeley, with twenty books behind him, a Supreme Court argument under his belt, an LA Times column, an AALS presidency, writes a polemic that runs as a freshman policy debate case with a debater’s dedication, a debater’s confession that the round is unwinnable with the audience the book is supposedly addressing, a debater’s reliance on hypocrisy as the closing weapon, and a debater’s refusal to engage the strongest positions on the other side. The book is not the work of a legal philosopher. The book is a national champion’s case file, polished and published. Yale gave it a hard cover. The cover does not change what the artifact is.
The honest reading: the book performs what it accuses originalism of performing. It dresses the coalition’s preferences in the language of method while declining to apply method to itself. The dedication is the only place the author tells the truth about where the work comes from.
‘The Non-United States of America’ (2021)
Chemerinsky offers a compact statement of liberal constitutional anxiety in the early twenty-first century. Written after the 2020 election and the January 6 attack on the Capitol, the essay asks why the United States seems unable to sustain a shared political reality. Its importance extends beyond the immediate occasion. The piece synthesizes themes that run through Chemerinsky’s larger body of work: skepticism toward anti-majoritarian constitutional structure, concern about federal judicial legitimacy, defense of expressive freedom, distrust of concentrated conservative judicial power, and a persistent faith that procedural reform can slow democratic decay without revolutionary rupture.
The essay reads as a connective document linking his writings on constitutional law, racial inequality, social media, free speech, and institutional governance. The instincts visible in his criticism of the Supreme Court’s race jurisprudence or his defense of platform editorial discretion appear here in distilled form. The central argument is direct. The United States is more polarized than at any moment since the Civil War. Constitutional structures once defended as stabilizing devices now operate as engines of division. The deeper interest of the essay lies in how it frames polarization not as temporary dysfunction but as the product of an unstable interaction among constitutional design, demographic sorting, economic geography, media fragmentation, judicial centralization, and tribal identity formation.
Chemerinsky’s strongest insight concerns the relation between constitutional structure and modern partisan realignment. He argues that institutions such as the Electoral College, Senate malapportionment, partisan gerrymandering, and life-tenured courts no longer restrain transient democratic passions. They permit durable minority rule in a country whose political coalitions are sorted geographically and ideologically in ways the Framers did not anticipate.
The argument becomes clearer when set against the longer record. For most of the twentieth century, the constitutional system operated under conditions of ideological overlap between the parties. Southern Democrats, northeastern liberal Republicans, labor Democrats, moderate Republicans, and cross-regional alliances diluted the anti-majoritarian effects of constitutional design. The Senate’s structure mattered less because heterogeneity within both parties encouraged bargaining and coalition maintenance. Constitutional friction slowed legislation but did not produce existential stalemate.
The transformation after the civil rights era altered this equilibrium. From the 1960s through the Nixon years and beyond, the parties underwent geographic and ideological purification. The South became Republican. Liberal Republicanism nearly disappeared. Conservative Democrats vanished outside isolated regional pockets. Once the sorting hardened, anti-majoritarian structures stopped functioning as moderating devices and became tools through which geographically concentrated minority coalitions could repeatedly hold national governing power despite losing the popular vote.
Chemerinsky identifies the Electoral College as a destabilizing institution under modern conditions. His treatment is effective because he situates the institution historically rather than mythologically. The Electoral College is not sacred constitutional wisdom but a political compromise tangled with slavery and fear of direct democracy. This reflects a recurring feature of his constitutional thought. Structures are products of political conflict and hierarchy, not transcendent embodiments of civic virtue.
His handling of Senate malapportionment exposes the gap between eighteenth-century assumptions and twenty-first-century demography. When the Constitution was drafted, the population disparity between the largest and smallest states was modest. Today the disparity is immense. Small-state overrepresentation produces a Senate capable of exercising enormous national authority while representing a shrinking minority of the population. The judiciary compounds this asymmetry. Presidents who lose the popular vote can appoint life-tenured judges confirmed by senators who represent a minority coalition.
One limitation of the essay is its majoritarian orientation. Chemerinsky treats democratic legitimacy chiefly as a function of population-based electoral representation. Institutions are evaluated by whether they reflect numerical majorities. From that vantage, the Electoral College and the Senate appear as distortions of democratic fairness.
Defenders of federalism might argue that anti-majoritarian structures were designed to prevent densely populated regions from dominating national governance. The Senate was never intended to mirror population. It was designed to represent states as political entities within a federal union. Constitutional systems are often structured not to maximize responsiveness but to slow coalitional volatility and preserve stability across heterogeneous regions.
Chemerinsky acknowledges these arguments but gives them little weight. The choice reflects a tension within progressive constitutionalism. Anti-majoritarianism reads as democratic pathology rather than as a tradeoff between responsiveness and stability. Yet constitutional democracies often require friction because populations are heterogeneous and political passions move quickly. The question is not whether anti-majoritarian institutions are legitimate in principle, but whether their current operation produces representational distortion severe enough to weaken social trust.
The argument becomes more compelling when supplemented with an account of economic geography. Chemerinsky identifies regional and educational polarization. His analysis would gain force from a fuller treatment of the material foundations of ideological sorting. The “Non-United States” is not only a metaphor for partisan disagreement. It describes a country composed of divergent regional economies that generate distinct cultural psychologies and political incentives.
Educated metropolitan regions tied to finance, technology, higher education, healthcare, media, and professional services lean Democratic. Rural and exurban regions tied to agriculture, logistics, resource extraction, manufacturing decline, or lower-density service economies lean Republican. Political identity attaches to local economic survival. A regulation celebrated in Silicon Valley or Manhattan can register as existential threat in West Virginia or rural Oklahoma. Policies embraced by industrial or extractive regions can appear regressive or destructive to metropolitan professional classes.
This produces a territorialized politics. Coalition membership embeds itself in place, labor market structure, educational attainment, and cultural status. The constitutional system was designed for regional diversity. It was not designed for a country where geographic concentration and economic specialization produce separate social worlds. Under such conditions, compromise no longer looks like ordinary democratic bargaining. It begins to resemble surrender to an alien civilization.
That transformation also helps explain the emotional intensity of polarization. Chemerinsky cites the statistic that 38 percent of Democrats and Republicans would feel upset if their child married someone from the opposing party. The sociological weight of this number deserves more attention. Polarization no longer turns on policy preferences alone. It has become a system of moralized identity boundaries.
The divide is not adequately explained by disagreement over taxes, healthcare, abortion, or regulation. Political affiliation now functions as a marker of personal virtue, epistemic trust, and social belonging. Modern polarization is tribal before it is ideological. Political reasoning often serves less as a search for truth than as a signal of loyalty, a tool of coalition cohesion, and a test of in-group reliability.
The discussion of social media gains importance against this backdrop. Chemerinsky’s treatment of digital communication parallels his broader First Amendment commitments. Like his co-authored work defending platform editorial discretion against state regulation, the essay celebrates democratized communication and fears its centrifugal consequences at the same time.
His invocation of Packingham v. North Carolina captures this duality. Social media platforms appear as revolutionary spaces for democratic participation and expressive freedom. The essay also concedes that the same technologies dissolve the informational bottlenecks that once produced shared national narratives. In the twentieth century, broadcast media performed a partial work of civic integration. Americans consumed overlapping news sources, cultural references, and national events. Walter Cronkite symbolized not only journalism but informational centralization. Social media fragments that landscape into algorithmically reinforced micro-publics. Citizens no longer share a common informational environment. They occupy rival epistemic universes structured around identity affirmation and emotional reinforcement.
The essay only partially explores the deeper implication of this shift. Social media may not merely amplify existing polarization. It may expose a more fundamental tension within democratic pluralism. Liberal constitutionalism prizes expressive freedom and communicative openness. Yet unrestricted communicative abundance erodes the shared epistemic authority on which democratic cohesion rests. The democratization of speech expands participation and dissolves consensus reality at once.
This contradiction extends beyond media into the larger structure of liberal governance. The more pluralistic and expressive a society becomes, the harder it grows to sustain shared moral narratives that legitimize institutional authority. Under those conditions, every institution risks reinterpretation as a partisan instrument.
That risk is sharpest in the judiciary. Chemerinsky argues that judicial appointments have become polarizing because courts exercise enormous political power. The analysis becomes richer when connected to the growth of the administrative state. The administrative state raises the stakes of judicial appointments because governance now occurs through executive agencies rather than through ordinary legislation. Congress delegates broad policymaking authority to administrative bodies regulating healthcare, education, labor, environment, immigration, telecommunications, finance, workplace discrimination, and digital communication. Courts become arbiters of national policy disputes because they determine the scope and legitimacy of administrative power.
The function of the judiciary shifts. In earlier periods, courts were important constitutional actors but not central to everyday governance. Today judicial interpretation determines large areas of public policy. The judiciary absorbs unresolved legislative conflict because polarized institutions can no longer produce durable legislative compromise.
That shift explains why confirmation battles now resemble succession crises. If Congress is locked and agencies govern through regulation, control of the judiciary equals long-term control of national policy. The Supreme Court ceases to look like a neutral legal institution and begins to appear as the final sovereign authority over cultural and political conflict.
This realignment also weakens democratic accountability. Citizens experience governance through litigation, judicial review, and bureaucratic procedure rather than through ordinary legislative bargaining. The result is populist resentment. People sense that unelected judges and administrators set substantive national policy while remaining insulated from direct electoral control.
Chemerinsky’s proposal for merit-selection commissions must be read against this backdrop. His solution is institutionally modest and temperamentally revealing. Despite his severe critique of constitutional structure, he remains a procedural reformer rather than a revolutionary critic. He continues to believe institutional legitimacy can be partly repaired through better process design.
The Alaska model occupies a symbolic place in the essay. Alaska represents the possibility of depolarized elite competence. Conservative governors there appointed professionally respected judges because merit-selection institutions partly insulated the process from raw ideological warfare. Chemerinsky reads this as evidence that institutional incentives shape judicial outcomes. The example also carries personal weight. He has spoken at the annual Alaska conference of judges and lawyers since 1990. Three decades of exposure to a depoliticized state judiciary shape his view that better procedures might produce better courts.
The proposal also reveals the limits of liberal proceduralism under hardened polarization. Chemerinsky himself concedes the central difficulty. Presidents have little incentive to disarm unilaterally. Judicial appointments have become too consequential to be surrendered to technocratic norms. President Carter’s circuit-nominating commissions ended the moment Reagan took office. No subsequent president restored them. The historical record argues against the proposal Chemerinsky advances. Procedural reform tends to fail under conditions of partisan asymmetry because the side willing to abandon constraint outcompetes the side that maintains it.
Merit selection might reduce the theatrical intensity of confirmation battles without addressing the sociological causes of polarization. If political conflict is rooted in racial realignment, economic geography, identity sorting, and tribal moral boundaries, then procedural reform can only partly mitigate the crisis. Courts are polarized because society is polarized. The judiciary reflects broader fragmentation rather than producing it.
That tension marks the deepest unresolved problem in the essay. Chemerinsky operates within a liberal institutionalist framework where legitimacy can be repaired through fairer procedures and more democratic structures. But the forces driving polarization may run deeper than procedure. Rival coalitions interpret the state as an instrument of existential cultural conflict. Under those conditions, procedural neutrality grows hard to sustain because institutions are judged by substantive outcomes rather than formal fairness.
The same tension surfaces in Chemerinsky’s writings on race and free speech. His critique of the Supreme Court’s anti-classification jurisprudence argues that formally neutral doctrines preserve substantive hierarchy. In all these settings, constitutional neutrality looks suspect because institutional structures distribute power unevenly. The challenge sharpens when rival groups disagree not only about policy but about the legitimacy of the social order. The merit-selection proposal sits awkwardly beside these substantive critiques. It asks polarized actors to accept procedural neutrality while Chemerinsky himself argues elsewhere that procedural neutrality often masks substantive hierarchy.
Despite these tensions, “The Non-United States of America” retains value because of its restraint. Chemerinsky does not indulge revolutionary fantasies or apocalyptic theater. He does not call for abolition of the Senate, a constitutional convention, or judicial purges. He does not pretend that national reconciliation is near. He offers incremental institutional reforms aimed at lowering the incentives for total ideological warfare.
That modesty gives the essay seriousness. It recognizes that constitutional democracies rarely achieve deep moral consensus. Their survival depends instead on institutions capable of containing conflict without delegitimizing political opposition.
Read in retrospect, the essay anatomizes structural persistence rather than temporary crisis. The forces Chemerinsky identified in 2021 remain intact in 2026: judicial centralization, geographic polarization, identity sorting, media fragmentation, administrative governance, and collapsing trust in national institutions. Subsequent years have reinforced the durability of these incentives.
The essay’s lasting contribution lies in its refusal to reduce polarization to singular villains or temporary hysteria. Chemerinsky presents division as institutionally mediated, historically rooted, technologically amplified, economically territorialized, and tribally organized. That framework keeps the essay relevant beyond the immediate Trump era.
The essay exposes the central dilemma of contemporary American constitutionalism. A constitutional system designed for an eighteenth-century federation of relatively diffuse regional interests now governs a continental digital society organized around ideological mega-coalitions, administrative centralization, and algorithmically intensified identity conflict. Anti-majoritarian institutions once defended as stabilizing devices appear illegitimate to majoritarian coalitions, while majoritarian impulses threaten geographically concentrated minorities.
Chemerinsky’s procedural reforms may not resolve these contradictions. Merit-selection commissions cannot heal the fractures of race, class, geography, religion, status competition, and tribal identity that drive modern polarization. The essay’s importance lies less in the adequacy of its solutions than in the clarity of its diagnosis. The crisis of American democracy is not merely electoral or rhetorical. It is structural, sociological, constitutional, and civilizational at once.
‘Misguided Federalism State Regulation of the Internet and Social‘(2023)
Alex Chemerinsky and Erwin Chemerinsky (b. 1953) published this in volume 102 of the North Carolina Law Review in 2023, just as state legislatures across the country were producing the first wave of statutes designed to govern online expression. Florida’s S.B. 7072 and Texas’s H.B. 20 prohibit much content moderation by major platforms. California’s Age-Appropriate Design Code Act and New York’s hateful-conduct law press platforms toward more aggressive moderation or impose substantive constraints on what platforms may show minors. Utah, Arkansas, and Montana have added age-gating, parental-consent, and outright app-banning regimes. Hundreds of additional bills were pending when the article appeared, and many more have been filed since. The article argues that almost all such state legislation either violates the First Amendment, runs into preemption under 47 U.S.C. § 230, or fails as policy even where it survives constitutional and statutory challenge. The thesis cuts against the partisan instincts on both left and right and rests on a single doctrinal premise: editorial discretion over user content belongs to the private platform, not to the legislature.
That premise organizes the entire argument and does most of the analytical work. The Supreme Court has held since Miami Herald Publishing Co. v. Tornillo that the state cannot compel a private publisher to carry speech the publisher prefers to exclude. Pacific Gas & Electric Co. v. Public Utilities Commission of California extended the principle to a regulated utility’s billing envelope. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston applied it to a parade. Turner Broadcasting applied it, with qualification, to cable operators. Manhattan Community Access Corporation v. Halleck reinforced that private speech intermediaries are not state actors merely because they perform an expressive function the public values. The article reads this line of cases as establishing that the act of selecting, arranging, and curating third-party expression is protected expression. From that premise it follows that compelled-carriage statutes such as the Florida and Texas laws regulate speech, not conduct, and that compelled-removal statutes such as California’s child-safety code regulate speech, not commerce. The Eleventh Circuit accepted this analysis in NetChoice, LLC v. Attorney General. The Fifth Circuit rejected it in NetChoice, LLC v. Paxton, treating moderation as conduct unprotected by the First Amendment and treating large platforms as common carriers subject to nondiscrimination duties. The article sides squarely with the Eleventh Circuit.
Two features of the doctrinal argument deserve particular notice. The first is the Chemerinskys’ insistence on symmetry. Much of the academic literature on platform regulation treats anti-moderation statutes as partisan censorship while treating moderation mandates as benign consumer protection, or reverses the polarity. The article refuses both moves. Compelled hosting and compelled removal are equivalent intrusions on editorial judgment, and the partisan valence of the speech preserved or suppressed does not alter the constitutional calculus. This stance gives the argument unusual coherence at a moment when much First Amendment commentary tracks the policy preferences of the commentator. The second feature is the article’s careful refusal to rely on metaphor. The Fifth Circuit treated platforms as a “public square” and concluded that the metaphor justified compelled hosting. The article responds that the public square was government property, not private property, and that the metaphor obscures the relevant constitutional distinction. Editorial discretion turns on who owns the speech infrastructure, not on how important the infrastructure has become.
The critique of the common-carrier theory is an especially sharp section. Florida and Texas attempted to short-circuit the editorial-discretion argument by declaring platforms common carriers. The Eleventh Circuit rejected the move on three grounds, each of which the article endorses and develops. Platforms do not behave like common carriers, since they select, rank, deprioritize, and remove content as a matter of routine operation. Supreme Court precedent treats internet computer services as distinct from common carriers, both in Reno v. ACLU and in subsequent cases. And Congress, in Section 230, expressly distinguished interactive computer services from common carriers. The Fifth Circuit’s contrary holding required a novel three-part test under which any “communications firm” that “holds itself out to serve the public without individualized bargaining” and is “affected with a public interest” can be subjected to nondiscrimination duties. As the article observes, that test, if taken seriously, absorbs most of American media into the category of common carrier. The implications for cable operators, search engines, payment processors, and now generative AI providers are obvious and ominous.
Eugene Volokh (b. 1968) has argued in a more sympathetic register that legislatures retain some authority to impose common-carrier-like duties on dominant platforms, at least for narrow categories of service. The article does not engage Volokh’s position at length, which is one of its few visible omissions. A fuller answer might distinguish between the historical category of common carrier, which presumed neutral transmission and individualized contracts, and the contemporary category of dominant platform, which presumes algorithmic curation and standard-form terms of service. The article’s editorial-discretion premise applies more cleanly to the second category than the first, and the Chemerinskys could have made that distinction more explicit.
The treatment of progressive regulation is more measured but no less critical. The California Age-Appropriate Design Code Act prohibits platforms from using a child’s personal information in a manner the platform “has reason to know” is “materially detrimental to the physical health, mental health, or well-being of a child.” The statute does not define those terms. It requires platforms to perform Data Protection Impact Assessments, to mitigate vaguely defined “harms” associated with content, algorithms, and advertising, and to avoid features that encourage children to “increase, sustain, or extend” their engagement. The article identifies the obvious vagueness problem. Statutes that regulate speech under standards a reasonable person cannot apply chill protected expression and concentrate enforcement discretion in regulators or plaintiffs’ lawyers. The Northern District of California enjoined the statute on First Amendment grounds in September 2023, and the article anticipates and defends that result. The deeper point is structural. Vague drafting in speech regulation tends to enable selective enforcement and indirect viewpoint control, particularly when penalties run into the billions of dollars and when the regulated entity must guess in advance which content a future regulator will deem harmful.
The disclosure analysis is a particularly useful contribution. The Chemerinskys distinguish three categories of disclosure regime: specific disclosure laws that require individualized justifications for each moderation decision, general disclosure laws that require aggregate transparency reports, and content-policy laws that require platforms to publish acceptable use policies and sometimes to enforce them. This taxonomy carries doctrinal weight because different categories trigger different First Amendment standards and bear different operational burdens. Specific disclosure regimes, of the kind imposed by Florida’s S.B. 7072 and Texas’s H.B. 20, fail because the scale of moderation makes individualized explanation impossible. YouTube removes more than a billion comments per quarter. Facebook acted against millions of pieces of harassment content in a single quarter. A regime that demands a written rationale for each removal, with statutory damages attached to inadequate “thoroughness,” guarantees either compliance bankruptcy or under-moderation. General disclosure regimes are more defensible because aggregate reports illuminate moderation practices without dictating editorial outcomes, and the article suggests that Zauderer-style review may often suffice. Content-policy regimes occupy a middle position, since requiring platforms to publish a policy is a content-based compulsion of speech, but the burden is comparatively light. New York’s hateful-conduct law fares worst because the policy it compels addresses a controversial subject and the law’s evident purpose is to indirectly induce moderation of constitutionally protected speech.
The Chemerinskys’ navigation of the Court’s inconsistent disclosure jurisprudence merits careful attention. In NIFLA v. Becerra the Court applied something close to strict scrutiny to compelled factual disclosures by crisis pregnancy centers. In Americans for Prosperity Foundation v. Bonta a plurality applied “exacting scrutiny” to a compelled donor-disclosure regime. In Zauderer v. Office of Disciplinary Counsel the Court permitted relatively easy compelled disclosures of factual, uncontroversial information in commercial advertising. The lower courts have struggled to coordinate these standards, and the article does not pretend to settle the doctrinal puzzle. It offers instead a functional analysis: the more a disclosure regime burdens editorial judgment, the more rigorous the scrutiny should be. That analysis predicts well the Eleventh Circuit’s mixed treatment of the Florida statute, which sustained some general disclosure provisions while striking down the individualized notice requirement.
The federalism analysis is the article’s distinctive contribution and the source of its title. Section 230(e)(3) preempts all state laws “inconsistent with” the platform immunity Congress enacted in 1996. Courts have read that preemption broadly. The article catalogs the four narrow domains in which states retain regulatory space: actions against platforms for their own speech or conduct, privacy laws “similar to” the Electronic Communications Privacy Act, prosecutions tracking three federal sex-trafficking statutes, and certain intellectual property claims. Outside these domains, state efforts to impose tort, criminal, or regulatory liability for hosted content collapse on preemption grounds. The Florida and Texas anti-moderation statutes attempt to impose liability for choices Section 230(c)(2) expressly authorizes. The California child-safety statute attempts to impose liability for hosting and recommending speech that Section 230(c)(1) treats as third-party content. Whatever survives First Amendment scrutiny falls to the Supremacy Clause.
The argument that Section 230 preemption is desirable, not merely operative, is more contestable. Critics across the ideological spectrum have argued that Section 230 immunity allows platforms to externalize the costs of harmful content. Danielle Citron and Mary Anne Franks argue that the immunity insulates platforms from accountability for harassment and abuse. Adam Candeub and others, on a different side, argue that the immunity props up incumbents who systematically suppress disfavored viewpoints. The article does not engage these critics directly so much as bracket them. Its claim is narrower and stronger: even if Section 230 reform is warranted, that reform should occur at the federal level. The case for federal exclusivity rests on three observations. First, the internet does not respect state lines, and platforms cannot operate fundamentally different moderation infrastructures in fifty different jurisdictions. Second, fragmented regulation produces a lowest-common-denominator effect, where the most restrictive state effectively dictates the moderation policy applied to users in every other state. Third, Congress has chosen this path before, in copyright (1976 Act and DMCA), medical devices (Medical Device Amendments of 1976), telecommunications (1934 Act), airline regulation (1978 Deregulation Act), and trucking (1995 ICC Termination Act), each time on similar reasoning.
The lowest-common-denominator analysis carries particular weight because the empirical evidence supports it. After California enacted the California Consumer Privacy Act, Microsoft applied its provisions nationwide rather than maintaining separate compliance regimes. After the European Union enacted the General Data Protection Regulation, several major platforms applied many of its provisions worldwide. After California adopted its 2019 vehicle-emissions framework, manufacturers selling in California adjusted nationwide rather than building two product lines. The article’s prediction that California’s child-safety regime, or a similar regime in another large state, will set de facto national policy reflects how platforms behave under fragmented regulation. The dormant commerce clause might in principle police such spillovers, but the doctrine is uncertain in application, and the Court’s decision in National Pork Producers Council v. Ross has narrowed the available paths.
Two threads in the article carry implications the authors develop only briefly. The first concerns market dominance. Many advocates of platform regulation argue that large platforms forfeit ordinary First Amendment protections because of their economic power. The article rejects the premise on doctrinal grounds and notes the ominous logic. If editorial discretion contracts as market share grows, then every successful media institution becomes a candidate for state supervision. Search engines, cable networks, streaming services, payment processors, cloud providers, and now AI platforms might all be redescribed as quasi-public utilities subject to ideological discipline. The Chemerinskys could have pressed this point harder. A First Amendment that loses force at scale is not a First Amendment any institution can rely on.
The second thread concerns governmental jawboning. Although the article focuses on formal legislation, the editorial-discretion premise speaks directly to informal coercion. If platforms have a constitutional right to moderate, governments cannot circumvent that right by replacing statutes with hearings, threats, or “cooperation” requests. The Fifth Circuit’s Missouri v. Biden decision, issued shortly before the article appeared, articulated this principle in striking terms. The Supreme Court vacated that injunction on standing grounds in Murthy v. Missouri in 2024 without reaching the merits, leaving the doctrine partly unsettled. The article anticipates the issue but does not develop it at length, and the question now occupies its own emerging body of doctrine.
The article’s substantive argument has been substantially vindicated by subsequent developments, even where the procedural posture remains unsettled. In Moody v. NetChoice (2024) the Supreme Court vacated and remanded both circuit decisions. Justice Kagan’s majority opinion endorsed the core editorial-discretion premise: the curation of third-party content by social media platforms constitutes expressive activity protected by the First Amendment. The Court’s framing tracked the Eleventh Circuit’s approach and rejected the Fifth Circuit’s treatment of moderation as unprotected conduct. The remand turned on the proper handling of facial challenges rather than on the merits of compelled-hosting doctrine. The Chemerinskys’ analysis of editorial discretion has, in effect, become the Court’s working framework. The article’s caution about absolutism looks well-judged. The Court has not held that every state regulation of platform conduct violates the First Amendment, and the article never claimed it should. It claimed that broad anti-moderation and pro-moderation regimes do, and that more limited disclosure regimes might survive if narrowly drawn.
The analysis is not without limits. Three deserve mention. First, the editorial-discretion argument presses hardest against statutes targeting traditional content moderation, but the doctrinal frontier has moved toward algorithmic recommendation and product-design choices that may not fit the Tornillo paradigm cleanly. The Ninth Circuit’s decision in Lemmon v. Snap, Inc. and the recent line of Section 230(c)(1) algorithm cases suggest that platform conduct, as distinct from platform speech, may bear different doctrinal treatment. The article notes the issue but does not resolve it. Second, the article treats Section 230 preemption as a stable structural feature, but Congress has repeatedly considered amendment, and the political coalition supporting current immunity has eroded. A coherent defense of federal exclusivity is not the same as a defense of permanent federal exclusivity, and the article’s policy argument might bind less tightly if Congress narrows Section 230. Third, the article’s federalism analysis works best for platforms with national or global operations and works less well for smaller, more localized services. The Chemerinskys gesture at this distinction without developing it. A more granular account might distinguish among types of platforms and types of regulation rather than treating all state intervention as structurally equivalent.
These limits do not diminish the contribution. The article succeeds in establishing three propositions that have largely been absorbed into the constitutional analysis of the new platform-regulation cases. Editorial discretion over user content is protected First Amendment activity. State regulation of national speech infrastructures generates spillover and lowest-common-denominator effects that cannot be confined by territorial doctrine. Section 230 preempts most state efforts to impose liability for hosted speech, by design and as good policy. Each proposition has been pressed against substantial counter-currents on the bench and in the academy, and each now sits closer to the doctrinal mainstream than it did when the article appeared. The Chemerinskys do not solve the problem of platform governance. They establish that the problem cannot be solved by fifty different state legislatures pulling in fifty different directions, and that the constitutional structure favors a single national approach administered through narrow federal regulation and the First Amendment.
The article’s deeper significance lies in its refusal of the panic that drives much current regulatory writing on the internet. Both progressive and conservative commentators write as if the existing system has produced a national emergency that requires immediate, drastic, and ideologically targeted intervention. The Chemerinskys decline that frame. They acknowledge the problems with platform behavior. They note the misinformation, the harassment, the algorithmic distortions, the inconsistent enforcement, the opacity. They argue that none of these problems justify dismantling the constitutional architecture that protects expression from state direction. The argument is recognizably liberal in the older sense: skeptical of state power, attentive to institutional autonomy, committed to procedural restraint even when substantive outcomes disappoint. That stance has become harder to maintain in a polarized environment where every institutional actor is judged by the politics of the speech it permits or suppresses. The article is a model of how to maintain it.
If the central question is whether a constitutional democracy can preserve coherent free-expression doctrine when communications infrastructure becomes the central terrain of political conflict, the Chemerinskys’ answer is qualified but firm. It can, if courts hold the line on editorial discretion, if Congress maintains a unified federal framework, and if state legislatures resist the temptation to convert their political grievances into national speech policy. None of these conditions is guaranteed. The article makes the case that all three are necessary.
‘The Challenges Facing Legal Education‘ (2023)
Erwin Chemerinsky’s speech is ostensibly a measured institutional reflection on the evolution of American law schools over the past half century. Delivered at the University of Alabama School of Law in 2023 and published in the Alabama Law Review in 2024, the address surveys five major transformations since the mid-1970s: increased diversity, technological change, the expansion of clinical education, the rise of interdisciplinarity, and the escalating cost of legal training. The essay is lucid, candid, and often perceptive. Yet its deepest significance lies not in its explicit conclusions but in the structural contradictions it unintentionally reveals. Read carefully, Chemerinsky’s address becomes less a celebration of institutional resilience than a portrait of a system trapped within its own success.
The central reality emerging from the essay is that the modern American law school has become a nineteenth-century pedagogical engine encased in a twenty-first-century prestige bureaucracy. The Langdellian core of legal education remains remarkably intact. Students still gather in tiered lecture halls to study contracts, torts, civil procedure, criminal law, and constitutional doctrine through appellate opinions and thick casebooks. Chemerinsky notes with some surprise that many of the very casebooks he used as a student in 1975 remain in use today, albeit in later editions. What once struck him as institutional stagnation he now regards as evidence of durability and effectiveness. Law schools, he concludes, continue to perform their primary function reasonably well: preparing individuals to become lawyers.
Critics of legal education have repeatedly predicted that technological disruption, changing labor markets, and interdisciplinary pressures would eventually render the traditional case method obsolete. Yet the Langdellian model persists because the legal system itself remains fundamentally textual, adversarial, and hierarchical. Lawyers still require training in doctrinal synthesis, analogical reasoning, procedural analysis, and interpretive argumentation. However technologically sophisticated the profession becomes, the legal order continues to depend upon the cognitive habits cultivated by the traditional classroom.
But Chemerinsky’s essay simultaneously demonstrates that this durable pedagogical core now supports an enormous institutional superstructure that did not exist in anything like its current form when he entered law school in the 1970s. The modern law school is no longer merely an instructional institution. It is a hybrid prestige bureaucracy expected simultaneously to credential students, produce interdisciplinary scholarship, manage diversity initiatives, provide psychological services, administer disability accommodations, cultivate public-interest pathways, maintain technological infrastructure, oversee career development, and compete within national rankings systems. The result is an institution whose economic and administrative complexity increasingly threatens the very stability it claims as evidence of success.
The essay’s most revealing feature is therefore not any individual reform Chemerinsky praises but the cumulative logic connecting them together. Every development he describes as an improvement also increases the institutional cost structure and administrative burden of legal education. Diversity initiatives require extensive recruitment and support systems. Clinical education demands labor-intensive supervision models. Interdisciplinary scholarship encourages hiring faculty whose incentives increasingly resemble those of humanities and social science departments rather than practicing lawyers. Student wellness infrastructures require psychologists, counselors, and accommodations offices. Technological adaptation creates permanent subscription and infrastructure costs. Each reform appears defensible in isolation. Together they create a system that becomes steadily more expensive, more bureaucratically layered, and more dependent on prestige reproduction.
Chemerinsky identifies clinical training as one of the most important developments in modern legal education and insists that supervised client representation is pedagogically essential. His analogy to medicine is powerful: society would never trust doctors trained entirely without patient interaction, yet many law students still graduate without ever representing a client under supervision. The critique is devastating because it exposes a long-standing weakness in traditional legal training.
Chemerinsky acknowledges why the problem persists. The genius of Langdell’s system, he explains, lies in its extraordinary economic efficiency. A single professor teaching hundreds of students in a lecture hall generates substantial institutional surplus at relatively low marginal cost. Clinical education, by contrast, is “tremendously expensive,” with best practices requiring roughly one professor for every eight students.
This reveals the central economic contradiction of modern legal education. The large doctrinal lecture course remains the hidden financial engine subsidizing the prestige-heavy but economically inefficient activities surrounding it. The old pedagogical core survives not merely because of intellectual conservatism but because it is what makes the rest of the institution financially possible. Clinics, interdisciplinary centers, student services, and expanded administrative structures all depend upon the surplus generated by scalable mass instruction.
The consequence is a cost-innovation paradox. The reforms most associated with making legal education more humane, practical, and socially responsive are precisely the reforms least compatible with the financial architecture sustaining elite law schools. The closer legal education moves toward apprenticeship, mentorship, and individualized professional formation, the more economically unstable the institution becomes. The system therefore cannot fully become what it rhetorically claims to value without threatening the cross-subsidy mechanism holding it together.
The same structural tension appears in Chemerinsky’s discussion of diversity. He intentionally places diversity first among the major transformations in legal education because he regards it as the most important. The historical changes he describes are undeniably significant. Women constituted only 5% of Harvard Law School’s entering class in 1970. By the early 2020s, women represented a majority of law students nationally and nearly two-thirds of Berkeley Law’s entering students. Racial diversity likewise increased substantially over the same period.
Chemerinsky’s treatment of Students for Fair Admissions v. Harvard is sober and institutionally realistic. He correctly recognizes that the Supreme Court’s decision threatens diversity gains achieved over several decades and that race-neutral alternatives may not fully preserve prior levels of representation. Yet the essay also reveals a characteristic limitation of elite legal-academic discourse. Diversity is discussed primarily in demographic and institutional terms rather than sociological ones. The modern legal elite is descriptively more diverse than it was in 1975, but it may simultaneously be more homogeneous in educational pedigree, professional culture, ideological orientation, and class formation. Elite law schools increasingly recruit students from highly credentialed managerial milieus shaped by similar prestige incentives and institutional assumptions. The result is often a broader demographic coalition entering a relatively narrow professional culture.
This tension becomes even sharper when connected to the economics of legal education itself. Chemerinsky candidly acknowledges that many graduates now leave law school with combined undergraduate and legal debt ranging from $200,000 to $300,000. Such debt inevitably channels graduates toward large corporate firms regardless of their substantive interests or ideological commitments. The system thereby produces a striking causal chain: increasingly expensive institutional superstructures generate crushing student debt, which in turn funnels graduates into elite corporate legal markets whose compensation structures make debt repayment possible.
Modern law schools increasingly speak in the language of public service, social justice, interdisciplinarity, and critique of concentrated economic power, yet their financing structure depends upon reproducing the very corporate legal order that sustains elite tuition models. The institution rhetorically valorizes public-interest law while economically relying upon BigLaw placement outcomes.
Chemerinsky celebrates the integration of economics, sociology, philosophy, psychology, and related disciplines into legal scholarship and teaching. In many respects, he is correct that this development enriched legal thought. Contemporary legal scholarship is often more intellectually ambitious and theoretically sophisticated than the largely doctrinal scholarship dominant in earlier generations.
Yet Chemerinsky also worries that law schools increasingly hire scholars with PhDs and limited practical experience because they are “further along as scholars.” This observation points toward a fundamental shift in the source of authority within legal education. Historically, the legitimacy of law professors rested substantially on professional judgment and participation in legal practice itself. Increasingly, however, elite law schools derive prestige through academic isomorphism with the broader university. Hiring incentives reward candidates who resemble elite humanities and social science scholars because those candidates produce the forms of scholarship valued within contemporary university prestige systems.
The legal academy thereby evolves from a guild of senior practitioners into a caste of interdisciplinary academic specialists. The classroom may still use the same casebooks and Socratic techniques, but the epistemic authority behind the podium changes. Students are no longer trained primarily under experienced lawyers transmitting professional craft knowledge. Increasingly, they are trained under legal theorists embedded within national scholarly prestige hierarchies.
This transformation changes the institutional identity of the law school. The legal academy becomes less closely tethered to the practice of law even while continuing to claim professional legitimacy through that practice.
Chemerinsky dismisses simplistic claims that laptops or PowerPoint presentations fundamentally altered legal education. The deeper transformation lies in the changing role of information itself. Legal research no longer depends on mastery of physical libraries and printed digests. Instead, the modern law library functions as a navigation system for overwhelming quantities of digital information.
Yet this transformation introduces another paradox. Digitalization was often expected to reduce institutional costs. Instead, it intensified infrastructural dependency. Chemerinsky notes that serials and subscription services remain “enormously expensive.” Modern law schools must continuously purchase access, maintain digital systems, update technological infrastructure, and train students in increasingly complex information environments simply to remain professionally legitimate. Information abundance generates administrative expansion rather than simplification.
The section on student consumerism may be the most sociologically revealing part of the essay. Chemerinsky notes that contemporary students increasingly approach legal education as consumers purchasing a costly service. He describes demands for tuition rebates during online instruction, complaints about oversubscribed classes, and requests that student-government leaders receive compensation for their labor. His tone conveys mild frustration at what he regards as an increasingly transactional mindset.
Yet from another perspective, student consumerism is not a cultural pathology but the logical consequence of the institution’s own financing structure. When students pay private-market prices for credentials financed through life-altering debt, they naturally begin to treat the institution as a service provider accountable for measurable outcomes. Chemerinsky himself notes that Berkeley Law now receives only 7% of its budget from public funding. At that point, the category “public institution” becomes sociologically ambiguous. The school retains the symbolic legitimacy associated with public service and democratic mission, but its operational logic increasingly resembles that of a privatized prestige market dependent upon tuition extraction, donor networks, rankings competition, and elite placement outcomes.
The modern law school therefore occupies a peculiar institutional position. It continues to present itself as a public-regarding professional institution devoted to democratic values and civic formation. Simultaneously, it operates within a highly privatized prestige economy requiring escalating tuition, administrative expansion, debt financing, and close integration with elite corporate labor markets. The contradiction is not accidental. It is structural.
What emerges from Chemerinsky’s address is a portrait of a system whose stability increasingly depends on fragile and mutually reinforcing cross-subsidies. Mass lecture courses subsidize clinics and prestige projects. Student debt subsidizes institutional expansion. Corporate legal markets subsidize public-interest rhetoric by absorbing graduates burdened with enormous loans. University prestige systems subsidize interdisciplinary hiring while gradually weakening ties to practical legal experience. The system continues functioning, and by many conventional metrics it continues succeeding. But its equilibrium becomes steadily more dependent on financial escalation, administrative growth, and institutional self-reproduction.
Chemerinsky’s optimism is therefore understandable but incomplete. American legal education is not collapsing. Its institutions remain remarkably powerful, prestigious, and socially influential. Yet the essay suggests that the contemporary law school has become structurally incapable of substantial reform because every major component now depends upon the others for institutional survival. Tuition cannot easily decline because the administrative and prestige superstructure is permanent. Clinical education cannot fully replace mass instruction because apprenticeship models are too costly. Practice-oriented faculties cannot entirely displace interdisciplinary scholars because university prestige systems reward academic specialization. Public-service ideals cannot displace corporate placement dependence because debt repayment requires elite salaries.
The modern law school thus survives through a kind of institutional equilibrium that appears stable while growing increasingly brittle. The Langdellian core endures because it remains economically indispensable. Around it has accumulated a vast prestige bureaucracy that simultaneously legitimizes and destabilizes the institution sustaining it. The result is not institutional collapse but institutional calcification: a system capable of adaptation at the margins yet increasingly unable to rethink its own underlying structure.
‘When Should University Administrators Speaks?’ (2024)
This essay deserves to be read not merely as a law review piece about campus speech, but as a revealing document about the crisis of legitimacy inside the contemporary American university. The essay defends liberal free speech doctrine, meditates on institutional authority under conditions of ideological fragmentation, and offers a personal account of what it means to lead in an era when every public utterance gets parsed for ideological allegiance. The essay also shows an elite academic administrator speaking with moral clarity while keeping faith with procedural liberalism. After October 7, when much of the university world retreated into euphemism, therapeutic ambiguity, or institutional paralysis, Chemerinsky articulated a model of leadership that neither collapses into censorship nor hides behind the false neutrality of bureaucratic silence.
Chemerinsky rejects a governing myth of the modern university: that institutional silence is neutral. He understands that silence communicates moral and political meaning. The insight may appear obvious, but much of the university establishment behaved after October 7 as though refusing to speak constituted principled detachment rather than substantive messaging. Administrators invoked the University of Chicago’s Kalven Report, with its admonition that universities should avoid taking positions on political issues, as though that absolved them from responsibility for the interpretive consequences of silence.
Chemerinsky sees why this posture failed. Universities had spent decades presenting themselves as moral actors. They issued statements on racial justice, immigration, climate change, abortion rights, democracy, LGBTQ issues, and countless other public controversies. Whole bureaucratic sectors of modern universities exist to articulate institutional ethical commitments. Under those conditions, sudden rediscovery of neutrality after the massacre of Israeli civilians did not appear principled. It appeared selective. Jewish students and faculty who watched administrators issue passionate statements after other atrocities but retreat into procedural vagueness after October 7 read the silence as substantive moral communication.
Chemerinsky’s operational principle is narrow and disciplined. He does not advocate constant administrative commentary. He warns against communicative overproduction. He speaks when silence might send the wrong message. The principle transforms administrative speech from performative activism into institutional triage. The question is not whether every tragedy deserves commentary. The question is whether silence might communicate abandonment, indifference, complicity, or moral cowardice to members of the university community.
The distinction matters because contemporary universities suffer from communicative inflation. Administrators now govern through endless messaging. There are diversity statements, land acknowledgments, solidarity declarations, emergency emails, condemnations, reaffirmations, values statements, and institutional reflections. In such an environment, speech loses symbolic force through overproduction. Chemerinsky observes that the more messages administrators send, the fewer people read them. The point is more than practical. He proposes a theory of institutional authority under conditions of saturated communication. Constant moral pronouncements degrade the seriousness of institutional speech.
In this respect, Chemerinsky differs sharply from the dominant style of contemporary academic administration, which treats institutional messaging as continuous reputational management. He attempts to preserve scarcity and therefore gravity. Administrative speech should remain exceptional enough that when it occurs it signals institutional necessity rather than routine bureaucratic self-display.
The essay reveals that Chemerinsky conceives of administrative speech not as emotional expression but as constitutional pedagogy. He uses moments of crisis to restate the underlying procedural commitments of the university: freedom of expression, viewpoint neutrality, anti-disruption rules, and the distinction between protected speech and punishable conduct. The pedagogical work is crucial because a defining feature of post October 7 campus conflict is widespread confusion about the structure of liberal free speech doctrine. Many students and activists operate with an expansive concept of harm that treats emotional offense, moral disgust, or ideological hostility as equivalent to actionable harassment or violence. Chemerinsky insists on the narrower constitutional framework.
The argument becomes most visible in his discussion of the December 5 congressional hearing with the presidents of Harvard, MIT, and the University of Pennsylvania. The hearing became a national morality play. Members of Congress demanded categorical declarations that advocacy of genocide against Jews violated university rules and might trigger automatic punishment. The presidents responded, correctly in legal terms, that the answer depended on context.
Chemerinsky’s treatment of this episode is among the essay’s strongest sections because it exposes a structural conflict between constitutional liberalism and the moral absolutism increasingly demanded in American political culture. The public wanted ritual denunciation and categorical certainty. Constitutional law operates through thresholds, context, intent, imminence, and factual specificity. Speech advocating genocide may become unprotected incitement, true threat, or harassment under certain conditions. But advocacy of horrific ideas as such often remains protected expression.
The gap between legal reasoning and public emotion became politically catastrophic for the university presidents because contemporary political culture no longer tolerates contextual liberalism in moments of moral panic. Nuance becomes suspect. The legally correct answer sounded morally evasive because the hearing did not function as a constitutional inquiry. It functioned as a loyalty ritual.
Chemerinsky’s explanation of the governing legal standards is therefore indispensable. Incitement requires advocacy directed toward imminent unlawful action and likely to produce such action. True threats require conscious disregard of the risk that speech might be perceived as a threat of violence. Harassment requires conduct so severe or pervasive that it materially interferes with a student’s educational participation. The categories are narrow by design because liberal constitutionalism rests on deep suspicion of state power to prohibit ideas.
Chemerinsky’s abortion hypothetical exposes the instability of viewpoint-based censorship regimes. If abortion opponents define abortion as genocide, should universities prohibit advocacy for abortion rights? If critics describe Israel’s actions in Gaza as genocidal, should defenses of Israeli military operations become sanctionable speech? The hypothetical demonstrates how rapidly moral censorship rationales become ideologically transferable.
What makes Chemerinsky admirable here is that he defends these liberal principles while acknowledging the emotional difficulty of doing so. He identifies as a Jewish man whose family members perished in the Holocaust. Yet he insists that even advocacy of genocide, horrifying as it is, often remains constitutionally protected. The position restores seriousness to free speech liberalism. Defending expression one finds agreeable requires little courage. The principle gains weight only when extended to speech one experiences as hateful, destabilizing, or morally revolting.
Chemerinsky also refuses the opposite error of procedural emptiness. He does not treat constitutional protection as moral neutrality. An important contribution of the essay is its insistence that universities can defend broad speech protections and condemn hateful rhetoric in explicit moral terms. The distinction has become harder for universities to maintain because contemporary campus culture often assumes that permitting speech equals endorsing speech. Chemerinsky rejects that collapse. Administrators have free speech rights too, and sometimes they must use them.
The essay rejects both dominant pathologies of the contemporary university. Against the activist impulse toward censorship, Chemerinsky defends procedural liberalism and viewpoint neutrality. Against the bureaucratic impulse toward euphemistic silence, he defends moral judgment and institutional courage.
The dual commitment explains why the essay feels serious. Most contemporary university communications fail because they try to avoid offense through linguistic sterilization. Chemerinsky accepts that leadership under polarized conditions produces anger. He acknowledges that any statement will alienate someone. Calling Hamas terrorists generates accusations of Islamophobia and racism. Refusing to call Hamas terrorists generates accusations of complicity with barbarism. Equating Israeli and Palestinian suffering angers some constituencies while refusing equivalence angers others.
Contemporary campuses no longer function as unified intellectual communities. They operate as competing factions organized around incompatible narratives of history, oppression, victimhood, and justice. Every institutional statement gets read through those frameworks. Language becomes a marker of allegiance. Under such conditions, administrators no longer act as educators or managers. They function as legitimacy brokers trying to maintain institutional coherence amid mutually hostile identity formations.
Chemerinsky understands this better than many of his peers because he recognizes that some conflicts cannot be dissolved through therapeutic dialogue. He states that there is no middle ground between those who regard Hamas’s actions as monstrous terrorism and those who interpret October 7 as resistance to oppression. There is no stable synthesis between people who view Israel as a necessary refuge for Jewish survival and those who regard Zionism as illegitimate settler colonialism.
The realism distinguishes the essay from much contemporary administrative rhetoric, which treats ideological conflict as a misunderstanding curable through exposure to diverse perspectives. Chemerinsky retains a classical liberal hope that hearing opposing arguments can sharpen thought and strengthen democratic culture. But the examples he provides reveal something darker than ordinary disagreement.
The rhetoric he quotes from students and faculty often moves beyond political criticism into eliminationist hostility. A student tells him that feeling safe requires “getting rid of the Zionists.” A professor describes Israelis as “irredeemable excrement.” Another suggests that Zionist journalists should fear violence and references their children and home addresses alongside knife and axe emojis. The language goes beyond heated political disagreement. It is rhetoric of contamination, purification, intimidation, and dehumanization.
Here the essay reveals more than Chemerinsky theorizes. Post October 7 campus culture often sacralized hostility. Certain activist environments treat Zionists not as interlocutors within democratic disagreement but as morally polluted figures outside the boundaries of legitimate humanity. Once politics organizes around categories of contamination and purification, procedural liberalism comes under pressure because opponents are no longer participants in shared discourse but existential threats.
Chemerinsky still refuses to abandon liberal institutionalism. The essay reads as a defense of postwar procedural liberalism at the moment when both left and right increasingly distrust it. Significant portions of the activist left regard free speech doctrine as cover for systems of oppression. Significant portions of the populist right regard universities as ideologically captured institutions unworthy of procedural deference. Chemerinsky tries to preserve a middle position where universities remain forums for open inquiry governed by legal restraint, viewpoint neutrality, and limited but real moral leadership.
The distinction he draws between institutional voice and personal voice carries weight here. Modern academic culture increasingly collapses the difference between speaking as an institutional representative and speaking as a scholar or citizen. Chemerinsky resists the collapse. While cautious about institutional statements to the law school community, he continues writing books and op-eds that signal his ideological commitments. He rejects the idea that deans should become silent technocrats once they assume administrative office.
The point has larger implications than the essay develops. Universities once derived legitimacy partly from the public intellectual role of their faculty and leaders. Administrators today often behave more like corporate risk consultants than scholars participating in democratic argument. Chemerinsky defends an older model where academic leaders engage public controversies rather than retreat into antiseptic managerial neutrality.
His willingness to acknowledge the financial and reputational risks of this approach gives the essay credibility. He admits he cannot know what donors he might have alienated, while observing that many donors reached out because they valued his willingness to participate in public debate. The admission complicates the widespread assumption within university administration that moral clarity is unsustainable.
A deep theme of the essay concerns the nature of leadership. Chemerinsky rejects the notion that administrators exist to maximize approval or maintain consensus. There are moments, he argues, when leaders must stand for what is right even if significant portions of the community become angry. The claim sounds banal until one recalls how rare such language has become inside elite institutional culture, where leadership gets conceived as stakeholder management rather than moral judgment.
The broader crisis the essay illuminates is not simply about antisemitism or free speech. The crisis concerns the collapse of confidence in the legitimacy of liberal institutions. Universities are now expected to function as neutral forums, therapeutic communities, ideological actors, constitutional guardians, diversity bureaucracies, and moral arbiters all at once. The functions regularly contradict one another. Activists demand emotional safety and ideological solidarity. Legislators demand viewpoint neutrality. Donors demand institutional stability. Faculty demand autonomy. Students demand recognition and affirmation. Social media punishes hesitation and nuance. Under such conditions, many administrators retreat into vague managerial language because any substantive judgment risks triggering institutional crisis.
Chemerinsky’s essay stands out because he refuses the retreat. He neither abandons procedural liberalism nor hides behind it. He insists that administrators may condemn hatred without criminalizing opinion, defend free speech without endorsing moral relativism, and exercise institutional leadership without pretending that neutrality is always possible.
Whether one agrees with every judgment he makes is less important than the seriousness of the framework he constructs. He attempts to preserve the possibility of liberal academic governance under conditions hostile to liberalism. That is why the essay matters beyond the immediate context of October 7. It captures the predicament of the modern university in honest terms. Universities can no longer claim to stand outside politics, yet if they become fully ideological actors they destroy the procedural legitimacy on which academic freedom depends.
Chemerinsky does not solve the contradiction. No one can. But he confronts it with greater candor, constitutional seriousness, and moral courage than almost any major university administrator in recent memory. In an era of bureaucratic euphemism, ritual ambiguity, and reputational cowardice, that alone makes the essay valuable.
No Democracy Lasts Forever: How the Constitution Threatens the United States (2024)
The book identifies three founding compromises (distrust of democracy, accommodation of slavery, robust states’ rights), tracks how mid-twentieth-century developments magnified their costs, and proposes a menu of fixes ranging from filibuster reform to a new constitutional convention to peaceful secession.
Chemerinsky shows that the Senate awards Wyoming the same representation as California, that the Electoral College has twice in this century elevated the popular-vote loser, that gerrymandering and Citizens United have hardened minoritarian advantages, and that Article V makes correction almost impossible. None of that is invented. He marshals it well.
But the book has problems that no liberal reviewer is likely to press, so I will.
Chemerinsky treats “democracy” and “majoritarianism” as synonyms, and majoritarianism as a stand-in for progressive outcomes. The framers distrusted pure democracy on grounds he never engages. They feared faction, mob rule, and the tyranny of the majority over minorities. He skips Madison on Federalist 10 and treats every counter-majoritarian feature as a defect rather than a designed restraint. A reader who came to the book without prior commitments might wonder why the same Constitution that protected gay marriage against state majorities, struck down state segregation, and shielded Jehovah’s Witnesses from compulsory flag salutes is now described as a sledgehammer wielded by minorities against majorities. The answer is that Chemerinsky liked the counter-majoritarian wins of the Warren Court and dislikes the counter-majoritarian wins of the Roberts Court. The structural analysis tracks the policy preference.
His three-Faustian-bargains framing is clean but lopsided. He underplays the Constitution’s achievements, which include the longest continuous democratic order on earth, peaceful transfers of power until January 6, 2021, the abolition of slavery (admittedly through war), the expansion of the franchise through amendment, and the creation of the wealthiest society in human history. A book willing to call the document a threat owes the reader more honesty about what it has delivered.
The proposed solutions read as a Democratic wishlist. End the filibuster (which helps whichever side holds the Senate at the moment, and which Democrats begged for when Republicans threatened to nuke it). End partisan gerrymandering (sometimes helpful to Republicans in Texas, sometimes to Democrats in Illinois and California). Expand the House. Term-limit the justices. National popular vote. Each of these reduces friction on majority power. Chemerinsky cheers that prospect because he assumes his coalition holds the majority. The 2024 results suggest the assumption is fragile. A Constitution stripped of its counter-majoritarian features is a Constitution that gives the next Trump administration fewer brakes, not more.
The new-constitution chapter is the weakest. He imagines a convention producing a document the public ratifies. He waves at “popular ratification” as the safeguard. He does not name who calls the convention, who picks delegates, what rules govern it, or what stops a runaway. The current polarization he identifies as the crisis is the same polarization that makes a constitutional convention dangerous. You cannot use the disease as the cure.
The secession chapter is intellectually provocative and politically irresponsible. Chemerinsky reads Texas v. White selectively, treating Salmon Chase’s “consent of the states” aside as a doctrinal opening rather than dicta in an opinion that holds the opposite. He acknowledges he is not advocating secession, but the chapter advocates taking it seriously, which in the current climate amounts to giving the idea oxygen. A constitutional scholar of his stature putting secession on the menu is a small but real contribution to legitimating the breakup talk he claims to deplore.
Style: clear, organized, accessible, and recognizably the work of a man who has been writing constitutional law textbooks for forty years. He cites well. He explains terms. He repeats himself.
Bottom line: the book diagnoses a real crisis but misidentifies its source. The crisis is sociological, technological, and cultural before it is constitutional. Polarization, the collapse of trust in institutions, the algorithmic shredding of common reality, the loss of cross-cutting cleavages, the disappearance of the moderate Republican and the moderate Democrat. The Constitution did not cause those. A new constitution will not fix them. Chemerinsky has written a careful liberal lament that confuses the symptom with the disease.
‘How I Write’ (2024)
The essay says nothing about how Chemerinsky thinks. It describes his output schedule.
Notice what he leaves out. He never names what he reads. He never describes how his positions form. He never names his trusted readers or why he trusts them. He never says what he cannot say. The piece reports output. It hides input, constraint, and risk.
He reports that casebooks aim at “ideological neutrality” while op-eds and trade books carry his “strong views.” That distinction works because the casebook generates income and the op-ed generates standing. Aspen pays him for the first. The Los Angeles Times pays him in coalition prestige for the second. His framework collapses into a division of labor.
His prose reads like a deposition. Short sentences, controlled, professional. “I loathe sarcasm and invective.” Of course. Sarcasm and invective endanger coalition standing. Civility marks writers who depend on the approval of fellow professionals.
He asks himself about audience and purpose. Good craft. He never asks who he writes against, whose approval he needs, or what positions a Berkeley dean cannot take. He has run a packed schedule for sixteen years as dean. No sabbaticals. No quiet. No time to be wrong. His routine produces volume. Volume requires that the ideas arrive pre-formed from the coalition.
His four-step routine of audience, thesis, structure, and writing front to back describes a man who discovers nothing on the page. He executes. That suits a casebook. It suits a column. It does not produce surprise.
The omission that interests me most: not one sentence about a position he changed, a critic who corrected him, or a draft he abandoned. Forty-four years and no public retraction. He chooses topics where his coalition already agrees with him.
He calls himself a better writer than editor and worries he resists revision once prose hits the page. Read that institutionally. He outlines before he writes. The outline encodes the conclusion. The writing fills in the support. Editing polishes the surface. His routine leaves no place for an idea to die.
Hemingway might have hated this essay. Not the prose. The prose works, simple and declarative. He might have hated the absence of stakes.
Constitutional Law: Principles and Polices (2023)
The book follows a traditional ten-chapter organization: federal judicial power, legislative power, executive power, federalism limits on states, the structure of rights protection, economic liberties, equal protection, individual rights, free speech, and religion clauses. Each chapter mixes major cases, lightly edited secondary cases, and Chemerinsky’s own connecting essays. The essays are the distinguishing feature. Most casebooks bury students under raw opinions and pose ungrounded “notes” full of rhetorical questions. Chemerinsky just tells you what the law is and how it got there.
That choice is the book’s great strength and its quiet vice.
The strength: Chemerinsky writes with rare clarity. He is one of the few law professors who can explain the dormant commerce clause or the Lemon test in prose a 1L can absorb on a first reading. The essays save students hours. They also let a teacher cover more material in a semester. The book sells because it works.
The vice: an essay that summarizes “the law” smuggles in an interpreter. Chemerinsky is not a neutral reporter. He is a Warren Court liberal of the Brennan and Marshall school, and his essays reflect that sensibility in their framing, their emphases, and their selection of which arguments to develop and which to mention and move past. Originalist and textualist positions get presented, but rarely in their strongest form. Conservative dissents get summarized; liberal majorities get unpacked. Read a chapter on the commerce clause and you can feel the thumb on the scale, even when the doctrinal account is technically accurate. Students who use this book and nothing else come away thinking they have learned the law. They have learned Chemerinsky’s reading of the law. The two overlap considerably. They do not coincide.
Richard Epstein (b. 1943) sits on the editorial advisory board, which I take as throat-clearing rather than substantive balance. Epstein does not write the book. The book is Chemerinsky’s.
Compare to alternatives. Stone, Seidman, Sunstein, and Tushnet’s casebook surfaces more theoretical complexity and lets students wrestle with the doctrinal mess. Brest, Levinson, Balkin and others go deeper into history and critical theory. Randy Barnett (b. 1952) and Josh Blackman (b. 1984) have produced an originalist-libertarian alternative that runs hard against Chemerinsky. None of these has Chemerinsky’s market share. Most law professors are liberal, most prefer a clear text that matches their priors, and most assign Chemerinsky.
The book is an artifact of the law school casebook market, which is a small disaster of its own. Hardcover casebooks priced at three to four hundred dollars, revised every three years, rendered obsolete almost on arrival.
Read the preface and watch what he says about students. The book was shaped by listening to “their views about constitutional law casebooks over the past 40 years.” Students wanted a straightforward, student-friendly text. They disliked rhetorical questions. They disliked excerpted law review articles. So he removed numbered notes after cases. He writes the essays himself instead of excerpting other scholars.
That sounds pedagogical. It markets, too. A casebook with no numbered notes makes the editor invisible and makes the book friendlier to adopters. A casebook with author-written essays controls which scholars get cited so the editor curates the canon. Students get a smoother text. Aspen gets a more adoptable product. Chemerinsky gets to set what counts as the scholarly debate without quoting anyone in particular.
The neutrality claim from his “How I Write” essay holds up better here than I expected. Look at his frame for abortion: “those who believe that abortion is murder and those who reject that view and believe that a woman should not be forced by the state to be an incubator.” He gives each side its preferred phrasing. Murder for the pro-life side. Incubator for the pro-choice side. Both inflame, and both come from the camp that uses them.
Watch for where his voice leaks. The preface flags the recent cases this way: the Court “overruled Roe v. Wade, significantly expanded gun rights, effectively eliminated affirmative action by colleges and universities, and radically changed the law concerning the religion clauses.” Three of those four verbs run neutral. “Radically changed” carries weight. A conservative author might write “restored.” A neutral author might write “significantly changed.” “Radically” tells you which way he votes.
The acknowledgments reveal a more interesting story than I expected. He thanks John Eastman (b. 1960), Doug Laycock (b. 1948), Nadine Strossen (b. 1950), Marcy Strauss, and others. Eastman ran the post-2020 election strategy for Trump and faces disbarment for it. Laycock argues the religious-liberty side at the Court. Strossen ran the ACLU. Chemerinsky kept these friendships across the lines that broke most academic relationships in the last decade. The book reflects that breadth. He does not write only for his coalition.
Seven editions across decades. Connected eBooks. Connected Quizzing. PracticePerfect. The Aspen ecosystem around the “red and black” series anchors American legal education. Chemerinsky has collected from this stream since the first edition. The neutrality you see on the page buys his place in that stream. He cannot be the man who writes the most-adopted constitutional law casebook in America AND the man who writes liberal op-eds AND a man whose editorial voice obstructs adoption. Two of those three. He chose the first two and disciplined the third.
That choice tells you how the man works. The op-ed inflames. The casebook teaches. The treatise argues. The supplement updates. Each product has its market and its required tone, and he has spent forty years calibrating each one to fit.
If you want a clear, comprehensive, accessibly written introduction to constitutional doctrine as a thoughtful liberal teaches it, this is the book. If you want to see the strongest case for originalism, federalism, or judicial restraint, you need a second book on the shelf. The honest move for any student is to read Chemerinsky and then read someone he disagrees with.
Pair this with Barnett and Blackman, or with the older Gunther casebook, and you will have something close to a complete picture. Read it alone and you will have Chemerinsky’s picture, polished and persuasive and partial.
Alliance Theory
The Pinsof, Sears, and Haselton Strange Bedfellows paper argues that political and moral belief systems do not derive from abstract values. They derive from alliance structures. Coalitions form first, through historical contingency and the transitivity principle. The principles get articulated afterward, as vocabulary the coalition needs to defend its configuration of allies and rivals. Three analytic tools travel with the argument: double standards (each coalition’s moral principles apply only to its allies), propagandistic biases (perpetrator, victim, and attributional distortions that favor the in-group), and the misunderstanding move (the coalition intellectual positions his allies as clear-sighted and his rivals as self-deceived).
Chemerinsky’s career fits the pattern at every level.
He sits at the center of the post-Warren Court liberal legal coalition. The membership includes elite law schools, the Democratic-aligned civil rights bar, ACLU-adjacent constitutional litigators, public-interest legal organizations, the appellate plaintiffs’ bar in civil rights cases, the foundation networks that fund all of the above, and the legal commentariat that staffs the New York Times, the Washington Post, MSNBC, and CNN as outside analysts. The vocabulary of this coalition includes judicial protection of minority rights, suspicion of originalism, defense of abortion rights and same-sex marriage, advocacy for affirmative action, structural critique of the Senate and Electoral College, and concern about the rule of law when conservative administrations act, paired with confidence in executive authority when liberal administrations act.
Chemerinsky’s career maps onto each node. Harvard Law School in the late 1970s, the Civil Division at the Department of Justice, DePaul, USC, Duke, UCI, Berkeley, the AALS presidency, the American Academy of Arts and Sciences. Each move kept him inside the same network and let him accumulate rank within it. He never broke ranks. He never wrote the book that the coalition did not want written.
The biographical narrative as told presents his views as conclusions reached through careful study of constitutional text and history. The Strange Bedfellows reading inverts the order. He arrived at the coalition first, through training and institutional placement. The principles he articulates match the coalition he travels with. His casebooks codify the coalition’s reading of the Constitution as standard professional reading. Students who learn constitutional law from Constitutional Law: Principles and Policies learn the coalition’s vocabulary as neutral doctrine. The book teaches what the cases mean. What the cases mean is what his coalition needs them to mean. The transitivity move runs through the casebook itself: students absorb the coalition’s reading without ever encountering the choice as a choice.
The double standards table from Pinsof’s paper applies cleanly. Judicial activism by conservative justices is unprincipled overreach. Judicial activism by liberal justices is constitutional protection of rights. Senate procedural blocking of Obama nominees is a constitutional crisis. Senate procedural blocking of civil rights legislation in the 1960s, when the same procedures served labor and civil rights interests, did not generate the same volume of structural critique from the same coalition. Republican governors who resist federal authority threaten federalism. Democratic governors who resist federal authority on immigration enforcement protect federalism. The Electoral College is anti-majoritarian when it elects Republicans. The same Electoral College, which produced majorities for Roosevelt, Kennedy, and Johnson, did not generate parallel structural critique from the same coalition during those eras.
Chemerinsky does not write hypocritically by his own lights. He writes the coalition’s principles as they apply at the moment he writes. The principles update as the coalition’s interests update.
Perpetrator distortion: Republican-appointed justices appear in his work as ideologically motivated actors who reach for legal fig leaves to cover political results. Democratic-appointed justices appear as principled jurists who happen to vote together because the law leans their way. Victim distortion: those harmed by conservative jurisprudence get vivid sympathetic portraiture in his casebooks and op-eds. Those harmed by liberal jurisprudence get less. Attributional distortion: when his coalition wins a case, the legal reasoning was sound. When his coalition loses, the Court was captured.
The structural critique of the Constitution in No Democracy Lasts Forever illustrates the timing problem. The Senate malapportionment and the Electoral College became existential threats to the Republic at the moment they began producing Republican wins. The same features did not generate the same alarm when they helped produce the New Deal and the Great Society. The framework arrives on schedule, calibrated to current coalition need.
The 2008 founding-deanship sequence at UCI shows the coalition logic in operation. The chancellor offered the position. Conservative objections to Chemerinsky’s op-eds led the chancellor to withdraw the offer. Liberal mobilization, including national press attention and faculty pressure, forced reinstatement. Everyone involved understood that the deanship was coalition placement, not neutral academic appointment. The brief withdrawal exposed what the smooth ascent through Harvard, DOJ, DePaul, USC, and Duke had concealed: that he is an actor for one side of a long contest. The reinstatement closed the curtain again.
The surface of Chemerinsky’s career is the figure of the careful expositor. He writes casebooks. He teaches doctrine. He argues cases. He chairs commissions. He speaks at bar association events. Surface vocabulary: rule of law, constitutional fidelity, judicial craft, professional excellence.
The underground is coalition coordination. The casebooks shape generations of law students into the coalition’s reading of the Constitution. The Supreme Court arguments push the coalition’s positions in cases the coalition selects. The commissions produce the findings the coalition needs. The op-eds keep the coalition’s vocabulary circulating in elite media. The deanships at UCI and Berkeley place coalition-aligned scholars on coalition-aligned faculties and graduate coalition-aligned lawyers into coalition-aligned firms, public-interest organizations, and clerkships.
Both layers run at once. The surface lets him deny that the underground exists. The underground lets the surface accomplish what the surface alone could not.
The coalition Chemerinsky serves is a strange bedfellows arrangement on its own terms. Free-speech absolutists who once defended Skokie marchers sit alongside campus speech-code advocates. Civil libertarians who opposed warrantless surveillance under Bush sit alongside those who accepted it under Obama. Public-interest plaintiffs’ lawyers share a coalition with corporate-defending elite firms when interests align on diversity and immigration policy. The coalition does not cohere on first principles. It coheres through transitivity, through who you stand next to and against whom.
Chemerinsky’s craft is to keep the coalition coherent at the level of vocabulary even where its members hold contradictory positions on first principles. The casebook smooths the contradictions. The op-ed picks the version of the principle the coalition needs this week. The book-length argument against originalism gives the coalition a shared enemy that papers over the disagreements among its allies. The work is coalition maintenance dressed as constitutional scholarship. The dressing is not deception. The dressing is the surface layer that the coalition requires for the underground layer to function.
Hybrid Vigor
Chemerinsky built UCI Law from nothing in 2008, hired the founding faculty, set the curriculum, fixed the institutional culture, and graduated the first class three years later. He extended the same work at Berkeley starting in 2017. The casebooks do parallel niche construction at the level of doctrine. Constitutional Law: Principles and Policies shapes the educational habitat that the next generation of law students enters. The students who emerge from that habitat are pre-selected to find Chemerinsky’s reading of the Constitution natural and the alternatives strange.
The work compounds. Faculty hired by Chemerinsky-shaped committees train students who clerk for judges shaped by similar hiring patterns who go on to faculty positions where they hire the next round. Each cycle tightens the niche. By the time the niche has run for three or four academic generations, the population inside cannot easily perceive the niche as constructed. It looks like the natural environment of legal scholarship.
The elite American legal academy is a closed breeding population by every operational definition. Recruitment runs through a small set of schools. Hiring committees select for ideological fit and tacit cultural compatibility. The clerkship pipeline funnels graduates through a small number of judges and back into faculty positions, where they certify the next round of clerks. The population is small. The mating is assortative. The boundary is policed.
Closed populations accumulate deleterious recessives. In the legal academy these express as confident misreadings of the other coalition. The dominant population has trouble taking originalist arguments seriously and treats conservative legal thought as bad faith. The Court’s rightward turn surprised people who should not have been surprised, because the population had spent decades selecting for the inability to model the other side. Chemerinsky’s Worse Than Nothing shows the recessive expression at book length. The book treats originalism as a method that fails on its own terms. It cannot do the harder work of explaining why the other coalition has won so much of the field, because the population that produced the book screened out the cognitive equipment for that question.
Crypsis is camouflage adopted under selection pressure. The Hybrid Vigor essay treats the modern academic environment as a habitat with strong selection pressure for ideological camouflage. Most academics with views unwelcome to the dominant population practice crypsis. They modulate public speech, adopt dominant vocabulary in print, and reserve honest views for back channels.
Chemerinsky does not practice crypsis. He cannot, because his environment does not select against him. His coloration matches the dominant coloration of the habitat. The asymmetry is the point. Conservative law professors at elite schools practice crypsis. Liberal law professors of his rank do not need to. The unequal distribution of crypsis pressure is itself a fact about the niche he helped construct, and the unfettered visibility of his political commitments is the freedom of an organism whose coloration is the herd’s coloration.
Exaptation is the repurposing of a trait that evolved for one function to serve another. Constitutional doctrines exapt across coalitions. The Fourteenth Amendment’s equal protection clause, drafted to protect freedmen, gets exapted to protect a long sequence of groups as coalition needs change. Substantive due process, the Lochner-era pro-business doctrine that liberals once attacked as illegitimate, gets exapted in Griswold v. Connecticut and Roe v. Wade to protect reproductive rights. The same doctrinal apparatus serves opposite political purposes depending on which coalition holds the Court.
Chemerinsky’s casebooks teach the exaptation as continuity. The doctrine grows. It develops. It refines. The Pinsof-Hybrid Vigor reading sees the doctrine as a generic structure repurposed by whichever population currently runs the Court. The exapted trait carries no memory of its prior function. The next coalition will exapt it again. Dobbs v. Jackson Women’s Health Organization exapted the same substantive due process apparatus that produced Roe against the result Roe reached. The casebooks treat DobbsDobbs as deviation. The biology treats it as exaptation.
The same genotype expresses different phenotypes in different environments. Constitutional vocabulary shows phenotypic plasticity at the coalition level. When the dominant coalition controls the Court, judicial review is the protection of rights and democracy’s necessary check on majoritarian excess. When the rival coalition controls the Court, judicial review is anti-democratic and an illegitimate intrusion on legislative authority. When the dominant coalition controls the executive, executive power is necessary to protect minorities from hostile majorities. When the rival coalition controls the executive, executive power threatens the rule of law.
Chemerinsky’s positions track the plasticity. His confidence in the federal courts ran high during the Warren and Burger Courts. It moderated during Rehnquist. It collapsed during Roberts. The genotype, his commitment to constitutional values, did not change. The phenotype, his views on judicial supremacy and structural reform, changed with the environment. No Democracy Lasts Forever expresses a phenotype that the same author could not have produced in 1994. The Senate and the Electoral College became existential threats at the moment they began producing rival-coalition wins. The plasticity is not opportunism. It is what the organism does in a changed habitat.
Bacteria pass useful genes laterally across the population without sexual reproduction, allowing rapid spread of advantageous traits across an entire community. The liberal legal coalition transfers doctrinal genes laterally through a similar circuitry. The ACLU drafts a brief. A law review article elaborates the brief’s theory. The casebook absorbs the article as standard doctrine. The Supreme Court cites the casebook and the article in its opinion. The opinion becomes precedent. The next ACLU brief cites the precedent. The same genetic material has traveled the entire loop and emerged as established law.
Chemerinsky operates at multiple nodes of this circuit. He litigates. He writes the law review articles. He authors the casebook that absorbs them. His students populate the chambers and clerkships that feed the opinions. He files the amicus briefs. The HGT runs through him as efficiently as through any node in the network. The casebook is the most powerful HGT vector he controls, because it transfers advocacy genes into the educational core where they get reproduced as standard doctrine to law students who do not yet know to distinguish advocacy from settled law.
The mid-twentieth-century legal academy produced real heterosis. Jewish entry into elite law schools that had previously been closed Anglo-Saxon Protestant populations produced genuine vigor. Frankfurter, Brandeis, then the postwar wave that included Chemerinsky’s own teachers and Chemerinsky himself. The crossing produced doctrinal innovations, methodological openness, and the energy that the closed prior population had lost.
By Chemerinsky’s generation, the academy is no longer crossing. It has formed a new closed population with its own internal recruitment patterns. The heterosis effect has been spent. The descendants of the heterosis cohort now run the closed population that needs the next crossing and resists it. The recent gestures toward demographic diversity have not produced intellectual diversity, because the new entrants get selected for ideological compatibility with the existing population. The result is a population that looks diverse at the level of demographic markers and is more closed than ever at the level of intellectual framework. The diversity vocabulary now ratifies the existing intellectual closure rather than challenging it. Chemerinsky’s institutional output is consistent with this picture. UCI’s founding faculty looked diverse and thought alike.
Populations that face low parasite stress invest less in immune defense. They become brittle when a serious parasite arrives. The post-Warren Court liberal legal academy faced low parasite stress for decades. Conservative legal thought was marginal. The Federalist Society did not yet exist. Originalism had not been developed into a working method. The host did not need to mount strong immune defenses, and so it did not.
When the Federalist Society and its institutional infrastructure produced a serious counter-coalition with its own pipelines, journals, judicial appointees, and theoretical apparatus, the host population was caught without defenses. Worse Than Nothing is an immune response built late, after the parasite has already established itself in the host institutions including the Supreme Court itself. The book’s tone of incredulous outrage carries the signature of a population that did not believe the parasite was a serious threat until the parasite was inside the cell. Chemerinsky’s recent shift toward structural critique of the Constitution carries the same signature. The host is now reorganizing its defenses around the assumption that the parasite has won the courts and must be defeated through structural reform of the document itself. The shift came late because the threat was underestimated for years.
Endosymbiosis is the long-term incorporation of one organism inside another, where each becomes necessary to the other’s survival. The elite liberal legal academy and the Democratic Party have an endosymbiotic relationship. The academy gets influence on judicial selection, legal policy, Supreme Court briefs, and the legitimation of Democratic legal positions. The party gets credentialed authority for its legal positions, a recruitment pipeline for its lawyers, and an educational institution that trains the next generation of party-aligned lawyers and judges. Neither could survive in its current form without the other.
Chemerinsky operates at the membrane between the two organisms. The Trump emoluments lawsuit, the constitutional commentary in Democratic-aligned media, the deanships at UCI and Berkeley that train the party’s legal cadres, the AALS presidency that coordinates the academy’s external posture toward the political environment. He is membrane protein.
Life history theory predicts that organisms allocate resources between fast-payoff strategies and slow-payoff strategies. Chemerinsky has invested heavily in slow-life-history work. The casebooks take decades to displace once established. UCI took years to build. Generations of students absorb the doctrine. The conservative counter-coalition has played a faster game on some fronts and a slower game on others. The Federalist Society pipeline produced rapid returns in judicial appointments. The decades-long development of originalism was slower than Chemerinsky’s casebook strategy and, in the long run, beat it on the same time horizon.
The biology does not predict that the slow strategy always wins. It predicts that slow strategies pay off when the environment stays stable long enough for the investment to mature. Chemerinsky bet that the environment would stay stable. The environment did not. His investments are still earning returns at the margin. They are not earning the dominant position they earned in the prior environment.
‘A Big Misunderstanding’
His career runs on the misunderstanding myth at every level.
The Chemerinsky casebook teaches constitutional doctrine to American law students. The premise of the casebook is that students enter the room not yet understanding the Constitution and leave the room understanding it better. The bad readings get corrected. The good readings get reinforced. The student who masters the book has learned what the cases mean.
Pinsof’s frame inverts the operation. The casebook is not correcting misunderstanding. It is producing one coalition’s reading of the Constitution as the standard reading and treating the rival coalition’s reading as error. The student who masters Constitutional Law: Principles and Policies has learned to see the cases through Chemerinsky’s coalition’s eyes. The student has not been freed from misunderstanding. The student has been recruited into a coalition’s vocabulary while believing he has been taught neutral doctrine.
The casebook works as well as it does precisely because it does not announce itself as coalition advocacy. The misunderstanding myth provides the cover. Students would resist a textbook openly identified as coalition recruitment. They do not resist a textbook presented as the careful exposition of doctrine. The myth is not a side effect. The myth is the operating condition.
Worse Than Nothing is the misunderstanding myth in book-length form. The argument: originalists do not understand what they are doing. The historical record cannot bear the weight they place on it. The framers disagreed. The modern questions exceed the eighteenth-century horizon. Better understanding of these problems will reveal that originalism does not work.
Pinsof’s response: the originalists understand all of this. They have read the same critiques. They have answered them, often at book length. They continue to use the method because it produces outcomes their coalition favors. They are not confused. They are pursuing their coalition’s interest, just as Chemerinsky pursues his coalition’s interest with the rival method. The book treats a coalition contest as a cognitive contest. That treatment is required for Chemerinsky’s role, because the contest cannot be acknowledged as a contest without exposing his work as one side of it.
The book sells well inside Chemerinsky’s coalition. It does not persuade originalists. Pinsof predicts both outcomes. The book functions as coalition coordination. It gives liberal lawyers a vocabulary for dismissing originalism. It does not change any conservative legal mind, because conservative legal minds are not held in place by the arguments the book attacks. They are held in place by the coalition the book opposes.
The Case Against the Supreme Court, published in 2014, makes the same move at the institutional level. The Court has failed across its history to protect minorities, to limit government power, to fulfill its constitutional role. Better justices, better institutional design, perhaps eighteen-year term limits, perhaps stronger ethics rules, all of these might fix the problem.
Pinsof’s reading: the Court has not failed by some external standard of constitutional performance. The Court has produced outcomes Chemerinsky’s coalition favored when his coalition controlled it and outcomes the rival coalition favored when the rival coalition controlled it. The reform proposals all assume that an institution can be designed to produce coalition-neutral outputs through clever procedure. Pinsof says no such institution can exist, because every position the institution might fill will be filled by people from one coalition or another, and the procedures will be evaluated by each coalition according to whether the procedures help or hurt its interests.
The book’s reform proposals share a feature. They all happen to favor reforms that, at the moment of writing, would help Chemerinsky’s coalition and hurt the rival coalition. The misunderstanding myth presents this as the convergence of reason on the right answer. The Pinsof frame presents this as the coalition reaching for the rule changes that serve its current strategic position.
The 2024 book extends the move from the Court to the Constitution. The Senate’s malapportionment, the Electoral College, the structure of the document itself, all become structural threats to the Republic. Better understanding of these features and bolder reform will save democracy.
Pinsof: the people who benefit from the Senate and the Electoral College understand the structures perfectly. They are not confused about the math. They are not failing to grasp the arguments for proportional representation. They have seen the arguments, considered them, and concluded that their coalition’s interests are served by the existing arrangements. They will not be talked out of their position by clearer presentation of the arithmetic.
The timing of the book is the test. The same structures existed during the New Deal, the Great Society, and the Warren Court. Chemerinsky’s coalition controlled the federal government across long stretches of those decades. The Senate’s malapportionment did not generate parallel alarm in the legal academy then, because the structures helped produce the coalition’s wins. The structural critique arrives now because the structures now produce the coalition’s losses. The misunderstanding myth presents this timing as the gradual accumulation of insight. The Pinsof frame presents it as the coalition reaching for new rules at the moment the old rules turned against it.
The 2017 lawsuit against Trump over emoluments was presented as a constitutional argument about a clause in the document. Pinsof’s reading: Trump’s defenders did not misunderstand the Foreign Emoluments Clause. They understood the clause, considered the political costs of pursuing the argument, and made the coalition calculation that defending Trump served their interests. No amount of clearer constitutional argument was going to move them. The lawsuit was coalition warfare prosecuted in legal vocabulary. Chemerinsky knew this at some level. He could not say it, because saying it would identify the work as what it was.
Chemerinsky occupies a high seat in the class Pinsof describes. The dean of an elite law school. The author of the dominant casebooks. The op-ed writer for the Sacramento Bee, the ABA Journal, and the Los Angeles Daily Journal. The Supreme Court advocate. The commission chair. The president of the AALS. The fellow of the American Academy of Arts and Sciences. Each position depends on the misunderstanding myth being true. If political and moral disagreement is not resolvable through better reasoning, the dean is not the cure for ignorance. He is one side’s communications officer. The casebooks are not neutral exposition. They are coalition curriculum. The op-eds are not analyses. They are coalition signal. The Supreme Court advocacy is not the application of reason. It is the prosecution of one coalition’s strategic case.
The salary, the status, the institutional power, the press attention, the deference of students, the requests for op-eds and television appearances, all of these flow from the position the myth makes possible. Chemerinsky cannot abandon the myth without abandoning the position the myth supports. The misunderstanding myth is therefore not a belief he holds tentatively. It is the operating premise of his life.
The myth flatters the intellectual. It makes him the corrective to ignorance. It places him above the fray. He is not a partisan. He is a scholar applying reason to law. His political alignments are the incidental output of careful thinking, not the input that drives the thinking.
Chemerinsky’s self-presentation tracks this exactly. The dean is not a Democrat. He is a constitutional scholar who happens to reach Democratic-friendly conclusions because that is where the analysis leads. The casebook is not a coalition document. It is the careful presentation of doctrine. The structural reforms are not partisan repositioning. They are the obvious response to features any reasonable person should see as flaws.
The Pinsof frame removes the consolation. The alignments are not incidental. The alignments are the point. The reason is the surface. The coalition is the substance. To see this clearly would require Chemerinsky to recognize his career as coalition advocacy rather than reasoned analysis. The career cannot survive that recognition. The career therefore prevents the recognition. He is a man whose institutional position selects against the cognitive operation that might disturb his institutional position.
The misunderstanding myth predicts that Chemerinsky’s structural critique should appear whenever structures produce bad outcomes by his stated criteria, regardless of which coalition the structures help. Pinsof’s frame predicts that the structural critique should appear when structures hurt his coalition and recede when structures help it.
The empirical record favors Pinsof. The same Senate that troubles him in 2024 sustained the New Deal coalition for decades and did not generate parallel alarm. The same Court whose structure he now wants to reform was treated as the protector of rights when it produced Brown, Roe, and Obergefell. The reforms targeted Republican-friendly features. The reforms did not target Democratic-friendly features such as the protection of high-population coastal states by federal preemption doctrines, the use of administrative agencies to bypass congressional gridlock, or the practice of nationwide injunctions issued by district courts. Each of these has been wielded against Republican administrations and defended by Chemerinsky’s coalition without parallel structural critique. The asymmetry is consistent across thirty years of his output.
Coalitions need members who can present the coalition’s interests as universal principles. The work cannot be done by figures who are openly identified as partisans. It must be done by figures who pass as neutral. The legal academy produces these figures and certifies them. Chemerinsky is the most successful product of this certification process in his generation.
His value to his coalition is precisely his apparent neutrality. If he were openly identified as a Democratic operative, he could not do the work. The casebook would not be assigned. The op-eds would not run. The Supreme Court arguments would not carry the same weight. The deanships would not have been offered. The misunderstanding myth produces the appearance of neutrality, and the appearance of neutrality produces the institutional positions, and the institutional positions produce the coalition output. Each layer requires the next. Remove the myth and the structure collapses.
Charisma and Social Paradoxes
Chemerinsky presents as the careful expositor of constitutional law. The casebook reads as service to the legal profession. The dean teaches the basic course. The professor patiently explains what the cases mean. The performance says: I am not above you. I am here to help you understand.
The institutional reality is the opposite. The expositor is also the legislator. Constitutional Law: Principles and Policies shapes what the cases mean for a generation of lawyers. He selects which cases get foregrounded, which dissents get treated as wrongheaded, which lines of doctrine get presented as central, which get marginalized. The casebook constitutes the field for the students who learn from it.
He pursues doctrinal authority while appearing to merely report doctrinal facts. The pursuit succeeds because he probably experiences the work as exposition rather than authorship. The paradox requires the experience. If he announced himself as the man shaping the field, the field would resist. He does not announce himself this way. The work goes forward without resistance.
The personal style is famously unassuming. He returns student emails. He answers questions from journalists. He writes back to obscure correspondents. He shows up to small events. He treats junior colleagues as peers. The manner says he is not above anyone.
The institutional position says he is the dean of the most prestigious public law school in the country, the author of the casebook every constitutional law student must read, the holder of a consequential institutional position in American legal education, the man who can make a young scholar’s career or end it through hiring decisions, citation choices, and informal recommendation. The asymmetry between manner and position is the paradox. Each layer requires the other. Without the modesty the position generates resentment. Without the position the modesty produces nothing. Together they produce a figure who accumulates power while appearing to disclaim it.
The paradox holds because Chemerinsky probably experiences himself as the unassuming professor he presents as being. The self-image is the engine. If he saw himself accurately as a major institutional architect, the modest manner would crack. He does not see himself this way. The manner stays intact. The architecture proceeds.
He has written The Case Against the Supreme Court, Worse Than Nothing: The Dangerous Fallacy of Originalism, and No Democracy Lasts Forever: How the Constitution Threatens the United States. The titles position him as the critic of major American institutions. The dean of Berkeley Law attacks the Court, the dominant interpretive method on the Court, and the Constitution itself.
The paradox works because the institution he sits inside, the elite legal academy, shares the critique. He is criticizing the rival coalition’s current hold on the Court, not the institution that pays him. The critique therefore costs him nothing inside his coalition while paying out in books, op-eds, television appearances, and the moral authority of the dissenting elder. The performance reads as courage. The structure ensures the courage is free.
A scholar who attacked the legal academy’s hiring practices, citation politics, or ideological closure with the same intensity he attacks the Court would face actual costs. Those costs do not arrive because he does not make those critiques. The critiques he makes flow downhill. The ones that would flow uphill stay unmade. The audience inside his coalition reads the downhill critiques as bravery. The recursive concealment requires that neither he nor his audience identify which way the critiques flow.
His positions are explicit. His structural reform proposals are explicit. His op-eds run in Democratic-aligned outlets. His television appearances make his political alignments unmistakable. He has filed lawsuits against Republican administrations. He has built law schools that produce lawyers who staff Democratic-aligned organizations.
He nonetheless carries the demeanor and credentials of the neutral scholar. The combination is the paradox. He is openly liberal and presents as not-a-partisan. Conservative law professors who held positions with comparable directional clarity would not be invited to teach the basic constitutional law course at the same institutions, because their politics would be coded as politics. His politics get coded as scholarship because his coalition controls the coding apparatus. The paradox requires the asymmetric coding to operate without anyone noticing the asymmetry.
The press relies on the paradox. When the New York Times needs a constitutional scholar to comment on the Court’s latest decision, Chemerinsky is one of the calls they make. The paper would not make the same call to a comparably credentialed conservative scholar with the same directional clarity, because the conservative would be coded as a partisan. Chemerinsky gets coded as the scholar. He gets the call. The paradox sustains the platform.
The biographical material is consistent: working-class Jewish family on the South Side of Chicago, debate team, Northwestern, Harvard, public service. The narrative places him as the outsider who made it through merit and effort. The story carries moral weight. It signals that his current position is earned rather than inherited.
The current position is fifty years inside the most credentialed institutions American legal education offers. He has held faculty positions at DePaul, USC, Duke, UCI, and Berkeley. He has founded one law school and now leads another. He has chaired commissions, advised governments, argued before the Supreme Court, and presided over the Association of American Law Schools. The biographical outsider is now the institutional inside in every operational sense.
The paradox holds because the biographical outsider story keeps running. He cites the Chicago South Side. He references the working-class background. He carries the moral weight of the figure who came up rather than down. The man telling the story is no longer the man the story is about. The man telling the story benefits from being identified with the man the story is about. Symbiotic deception: the audience wants the outsider made good, and Chemerinsky obliges them by remaining the outsider in narrative even after becoming the inside in fact.
VII. The Defender of Free Speech Who Polices It Through Others
He defends First Amendment rights for speakers his coalition opposes. He signs letters supporting controversial speakers on campus. He writes about the dangers of speech codes. The performance places him as the principled free-speech defender willing to protect speech he disagrees with.
The institutions he runs and the curriculum he shapes operate inside a regime that manages speech through hiring, citation patterns, conference invitations, and editorial gatekeeping. The faculty he hires at UCI and Berkeley do not include open conservatives at the rate that his stated free-speech principles might suggest. The casebook foregrounds the cases his coalition wants foregrounded and treats the rival coalition’s preferred cases as the deviation requiring explanation.
The paradox lets him claim the principled high ground at the level of formal speech defense while his coalition does operational speech management at the level he does not personally control and therefore cannot be charged with. The recursive concealment requires that neither he nor his audience identify the gap between the formal commitment and the operational reality. He does not see himself as inconsistent. His audience does not see him as inconsistent. The work goes forward.
The Pinsof social paradoxes paper insists that paradoxes succeed through active inference on both sides. Chemerinsky’s audience does not passively receive his performance. The audience actively infers that he is the kind of scholar who would not perform, and that inference produces the experience of his authority.
Law students in their first-year constitutional law course infer that the professor at the front of the room is teaching them what the cases mean rather than what one coalition wants the cases to mean. The inference is required for the course to function as education rather than as recruitment. The professor performing the inference-supporting posture, careful, patient, qualifying his claims, presenting both sides, lets the inference sustain itself. The students become certain that no other posture is present. By the end of the semester they have absorbed the coalition’s reading of the Constitution and the coalition’s evaluative grammar for distinguishing good legal arguments from bad ones. They will spend the rest of their careers carrying that grammar. They will not identify it as a coalition’s grammar. They will identify it as how legal reasoning works.
The fluency of the not-performing posture is what produces the certainty that no posture is present. Chemerinsky has sharpened the posture across forty-five years of teaching. By 2026 it operates at a level where the recursive mindreading completes itself in seconds. Students walk into the room already inferring that he is the careful neutral scholar. He confirms the inference by behaving as the inference predicts. The cycle locks in.
The same Chemerinsky who reads as the model of judicious legal scholarship to law students at Berkeley reads as a partisan dressed in scholarly clothing to conservative legal observers. The same casebook that strikes the liberal student as the canonical exposition of constitutional law strikes the conservative student as a long argument for one side of a contest the book pretends not to be inside.
Neither reading is paranoid. Both are accurate to the audiences that produce them. The liberal reading registers the careful manner, the moderate tone, the attention to legal craft, and the apparent willingness to engage opposing views. The conservative reading registers the case selection, the doctrinal emphasis, the framing of conservative arguments, and the structural pattern of which conclusions the book favors. The two readings are not produced by different facts. They are produced by different evaluative grammars applied to the same facts.
Chemerinsky’s career has been spent inside an institutional environment dominated by his coalition’s evaluative grammar. The grammar codes him as the careful scholar. His audience reach extends as far as the grammar reaches. The other coalition’s grammar codes him differently. He cannot persuade audiences operating under that grammar, because the grammar itself sees through the paradoxes that work for his audience. Worse Than Nothing failed to convert any originalist for this reason. The originalists were running a different evaluative apparatus. The book’s charisma did not register on the apparatus they were running.
The paradox holds best for the casebook and the public-intellectual writing through about 2014. The strain begins to show with the structural reform turn. No Democracy Lasts Forever sits closer to where the careful-scholar paradox stops working. The book argues that the Constitution threatens the country. The argument requires positions that the careful-scholar posture cannot fully accommodate. A scholar who concludes that the document is the threat and proposes structural reforms that disadvantage one coalition has crossed a line. The line is where the paradox breaks for audiences that were beginning to suspect it.
His own coalition reads the late-career structural turn as the courageous truth-telling of an elder statesman who has seen enough. The rival coalition reads it as the moment the mask finally slipped. Both readings are predicted by the framework. The performer’s coalition reads breakage as escalation of authenticity. The rival coalition reads breakage as confirmation that the prior performance was performance.
The deanship through 2029 will determine whether the paradox can be repaired. The institutional position requires the careful-scholar posture. The structural reform writing strains it. He might publish more in the structural reform vein. Each book in that line might cost him more of the paradox’s purchase on the part of the audience that grants him neutrality. The remaining purchase is what the deanship spends. The bank balance is finite.
Watergate as Democratic Ritual & Cultural Trauma and Collective Identity
Chemerinsky is a priest of the democratic civil religion the Watergate ritual sanctified, and a senior carrier-group narrator in the trauma claim now being made by the elite liberal legal academy about the current Court and the Constitution itself. The two roles connect.
Chemerinsky entered Harvard Law School in 1975, one year after Nixon’s resignation. He was twenty-two when the ritual reached its conclusion. The generation of liberal legal academics now in their seventies was formed in the immediate afterglow of the purification. The audience they entered law school as was the audience the ritual had produced. The faculty teaching them were the priests who had performed it.
The ritual taught specific lessons. The federal courts were the site of constitutional rescue. The Senate hearings were proof that civic religion could discipline a deviant president. The Constitution worked. Judicial supremacy was vindicated. The press was a partner in the purification. The bar was the auxiliary clergy. The casebook tradition was the catechism. Chemerinsky’s career has been spent inside the institution the ritual sanctified, teaching the doctrines the ritual ratified, advocating for the institutional roles the ritual canonized.
His casebook Federal Jurisdiction transmits the technical apparatus of the ritual machinery. Standing, abstention, sovereign immunity, habeas corpus, federal question jurisdiction, removal, supplemental jurisdiction. Each doctrine is a switch that activates or limits the federal courts’ ability to perform their ritual oversight role. The casebook teaches law students how to operate the switches. The law students grow up to be the priests who run the machinery in the next generation.
Chemerinsky carries the manner of the priest. The careful tone, the moderate voice, the appeal to sacred constitutional values, the willingness to chastise his own coalition when its members violate the ritual code, the readiness to perform the public liturgy at moments of constitutional crisis. He is the figure the New York Times calls when the country needs a constitutional homily. He delivers the homily. The audience that recognizes the priestly role responds with reverence. The audience that does not recognize the role responds with indifference or hostility.
The deanship at Berkeley Law extends the priestly role from media performance to institutional administration. He runs a temple of the civil religion. The faculty he hires are co-priests. The students he trains are seminarians. The graduates he produces enter the litigation networks, the judicial chambers, and the law-firm partnerships that operate the civic-religious machinery in their working hours. The temple reproduces itself across generations.
The 2017 emoluments lawsuit was an attempt to perform the Watergate ritual on Trump. The structure was identical: identify pollution, generalize upward from politics to sacred values, mobilize elite countercenters in the legal academy and the litigation bar, invoke the institutional social controls of federal courts, ritually purify the polity through the courts’ findings.
The ritual failed. The pollution did not stick. Trump was impeached twice and acquitted twice. He was indicted four times and returned to office in January 2025. The Watergate template did not generate the Watergate outcome. The five conditions Alexander specified for successful ritual purification did not hold. Consensus did not form. The pollution was not perceived by enough of the country as threatening the social center. The institutional social controls were activated but did not produce the required findings on the required schedule. The differentiated elite countercenter mobilized but failed to draw the political center toward it. The ritual purification process never reached the moment of the resignation walk to the helicopter.
Chemerinsky participated as priest. He filed briefs. He wrote op-eds. He commented on television. He signed letters. The performance was technically correct. The rite did not work. Alexander’s framework predicts both possibilities. The framework does not promise that ritual purification will succeed. It specifies the conditions under which it can succeed and lets the conditions be checked. The 2017-2024 conditions did not match the 1972-1974 conditions. The failure is structural, not personal.
Trump’s firings of various officials, his pressure on prosecutors, his clashes with judges, his statements about the Department of Justice, all of these echoed the Saturday Night Massacre that Alexander identifies as the decisive moment of pollution transfer in the Watergate ritual. The 1973 firing of Archibald Cox brought sacred impurity into direct contact with the structural center of American power. Public opinion turned. Articles of impeachment got drafted. The ritual moved into its final phase.
The Trump-era equivalents did not produce the equivalent response. Each firing generated its op-eds and its briefs. Chemerinsky wrote some of the op-eds. The op-eds did not move the country. The audience that registered the 1973 Saturday Night Massacre as sacred violation did not exist in the same form in 2017 or 2020. The audience had fragmented. The civic-religious vocabulary that read Cox’s firing as constitutional crisis no longer carried the same authority across the polity. Chemerinsky’s homilies addressed the half of the country that still spoke the vocabulary. The other half had stopped attending the church.
Cultural trauma now organizes the liberal legal academy’s relation to the current Court. The four questions get answered with consistency across casebooks, op-eds, and law review articles. The pain is the loss of constitutional protections Americans had relied on. The victim is the American people, the marginalized, future generations, democracy itself. The relation of victims to wider audience is total. The perpetrator is the Roberts Court, the conservative legal movement, the Federalist Society, the structural Constitution that allowed the conservative capture, the Senate’s role in confirmations, the Electoral College that produced the presidents who made the appointments.
Chemerinsky is the most prolific carrier-group narrator of this trauma claim in his generation. The Case Against the Supreme Court opened the narration in 2014, before the post-2018 acceleration. Worse Than Nothing widened the indictment to the methodology that justifies the Court’s decisions. No Democracy Lasts Forever expands the indictment to the document itself. The arc of the trilogy is the spiral of signification Alexander describes. Each book moves the trauma claim further up the ladder of generalization. The first book targets the institution. The second targets the method. The third targets the founding document.
The carrier-group features Alexander specifies are all present. Material interests: book sales, deanships, op-ed contracts, speaking fees, foundation funding, Democratic Party adjacency. Institutional positions: Berkeley, AALS presidency, the casebook market. Discursive talents: the casebook tradition, the op-ed voice, the television appearance, the Supreme Court argument, the law review article. The carrier group is well equipped for the work. The work is the construction of the trauma claim.
Chemerinsky’s coalition treats the trauma claims as natural responses to obvious facts. The Court did terrible things. Of course the academy responds with alarm. Of course books get written. Of course democracy is in danger. The naturalism makes the construction invisible. The framework predicts this.
The construction shows when the same facts get evaluated differently across coalitions. Dobbs registers as catastrophic injury inside Chemerinsky’s coalition and as overdue correction outside it. New York State Rifle and Pistol Association v. Bruen registers as authorization of carnage inside his coalition and as restoration of constitutional text outside it. Students for Fair Admissions v. Harvard registers as the end of educational equality inside his coalition and as the repair of equal protection outside it. The cases do not produce the trauma. The carrier group produces the trauma claim about the cases. The opposing coalition produces a different construction of the same cases.
The naturalistic fallacy is what lets the carrier group’s members proceed without recognizing the construction work as construction. They experience the work as documentation. Chemerinsky writes about the Court the way a journalist writes about a hurricane. The hurricane is real. The reporting is honest. The framing of the hurricane as civilizational injury is something the framework can see and the participants cannot.
Trauma claims require a sanctified baseline against which the desecration is measured. The mournful-conservatism genre sanctifies fusionist conservatism. The mournful-journalism genre sanctifies the Lippmann-to-Murrow tradition. The mournful-legal-academy genre sanctifies the Warren Court.
Chemerinsky’s casebooks treat Brown v. Board of Education, Miranda v. Arizona, Reynolds v. Sims, Gideon v. Wainwright, and New York Times v. Sullivan as the apex of constitutional virtue. The cases get presented as the moment the document worked as it should. The current Court’s deviations are deviations from this baseline. The sanctification is required for the desecration narrative to operate. Without the sanctified Warren Court, the Roberts Court is just one Court among many in a long history of Courts. With the sanctified baseline, the Roberts Court becomes the agent of fall.
The Warren Court was, by the contemporaneous standards of large parts of the country, a court that overrode democratic processes to impose policy preferences on a polity that had not adopted them through legislation. Critics at the time, including critics inside the legal academy, made this argument. Chemerinsky’s casebooks present the critics as wrong, the Court as right, and the criticisms as themselves part of what was wrong with the country before the Court fixed it. The sanctification is built into the casebook treatment. Students absorb the sanctification along with the doctrine. They graduate carrying the baseline that makes the trauma narrative legible.
Alexander’s Watergate essay specifies that ritual purification requires the mobilization of differentiated elites who form a countercenter to the polluted center. In the 1973-1974 ritual, the countercenter consisted of the Senate Watergate Committee, the special prosecutor’s office, the federal judiciary, the elite press, and the legal academy. Each institution operated under a different professional logic and reached convergent conclusions, which gave the convergence its ritual force.
The current liberal legal academy is no longer differentiated from the Democratic Party in the way the 1973 institutions were differentiated from each other. The endosymbiotic relationship has tightened. The elite press has tightened with it. The professoriate, the litigation bar, the editorial pages, the foundation officers, and the Democratic political infrastructure now share enough institutional culture that their convergence reads, to the audience that is meant to receive the convergence as ritual proof, as coalition coordination rather than as differentiated elite consensus.
The countercenter therefore cannot do the ritual work the 1973 countercenter did. It can produce the texts. It cannot produce the broader audience response that converts the texts into purification. Chemerinsky writes the books. The books reach the audience that already shares the carrier group’s vocabulary. The wider audience the trauma claim needs to reach receives the books as partisan output and dismisses them. The ritual stalls.
Alexander’s framework allows for the possibility that a carrier group may construct the trauma claim correctly by all internal criteria and still fail to produce the master narrative. The construction requires acceptance by an audience wider than the carrier group itself. If the wider audience does not extend its identification to the named victims, the trauma narrative does not become collective. It remains the carrier group’s claim about itself.
Chemerinsky’s trauma claim about American democracy faces this problem. The carrier group is internally cohesive. The construction is well-executed. The vocabulary is sophisticated. The institutional support is strong. The audience response is bifurcated. Half the country reads No Democracy Lasts Forever as confirmation of what they already believe. The other half reads it as evidence that the carrier group has lost touch with the country. The narrative therefore does not generalize to a master narrative. It remains a coalition narrative about itself, about its preferred Court, about its preferred Constitution, about its preferred outcomes.
The trauma claim that succeeds at the level Alexander describes for Watergate does not appear to be available in the current environment. The conditions are not present. Chemerinsky’s deanship through 2029 might continue producing the texts. The texts might not produce the purification. The carrier group might continue to act as if the construction were on track to succeed because the carrier group’s institutional life requires the belief that it might. The belief sustains the work. The work sustains the institution. Whether the work succeeds at the level the framework specifies is a question the framework cannot answer in advance and that the participants are not positioned to ask.
His generation’s faith in that religion was formed by that ritual at the moment of his entry into the profession. The casebooks transmit the faith. The deanships maintain the temples. The op-eds and Supreme Court arguments perform the public liturgies. The recent trilogy of structural-critique books carries a trauma narration the carrier group requires to keep running. The narration is competent. The audience for which it would have to register as collective trauma rather than coalition complaint is not present. The priest performs the rites. The rites do not produce the purification they once produced. The temple persists. The faith of the priesthood persists. The country to which the priesthood addresses its homilies has changed in ways the priesthood is not yet equipped to acknowledge.
Convenient Beliefs
Chemerinsky did not arrive at his beliefs through pure reflection. He was selected at every stage of his career by evaluators who screened for the candidates whose beliefs fit the role. The Harvard Law admissions committee in 1975 selected from among applicants. The Civil Division of the Department of Justice selected its honors attorneys. Dobrovir, Oakes and Gebhardt selected its associates. DePaul selected its assistant professors. USC selected its lateral hires. Duke selected its named-chair recruits. UCI’s chancellor and search committee selected its founding dean. The Berkeley regents selected the dean who succeeded Christopher Edley. Each selection ran through evaluators who knew what the role required and chose accordingly.
The Berkeley regents extending his deanship through June 2029 is the most recent selection event in this fifty-year sequence. The regents knew what they were extending. They selected the candidate whose beliefs continue to fit the role. The framework does not say the regents acted in bad faith. It says the regents acted as selection committees act, choosing the candidate whose convictions would serve the institution as the institution understands its needs.
By the time a person has been selected fifty consecutive times across fifty years for fitting the same set of role requirements, the question of whether his beliefs are independent of his role has lost its sharpness. The man and the role are coextensive. The selection pressure has produced the result it was structured to produce. Chemerinsky is what fifty years of coalition selection delivers when the selection runs at this level of intensity on this scale.
The beliefs that mark coalition membership for Chemerinsky’s position are stated openly across his work. The framework treats the openness as confirming, not disconfirming. The beliefs need to be held openly for the work to function.
Belief: The federal courts are the proper guardians of constitutional rights. The career depends on the courts mattering enough to support casebook authorship, Supreme Court advocacy, and a major-law-school deanship. A scholar who thought constitutional rights were better protected by legislatures, by political mobilization, or by ordinary democratic deliberation would have no role to play in the institutional ecosystem the casebook supports. The belief is required for the role.
Belief: Constitutional interpretation is a craft requiring trained expertise. The career depends on the certified expert being valuable. If constitutional interpretation were accessible to ordinary literate citizens reading the document with care, the casebook tradition would lose its monopoly on the field. The belief positions Chemerinsky’s coalition as the credentialed body without which the public cannot understand its own founding document.
Belief: Originalism is intellectually bankrupt. Worse Than Nothing is the book-length statement of this belief. The coalition needs originalism delegitimized. A scholar who thought originalism had real intellectual force could not perform the work of delegitimizing it. The selection pressure produces scholars who hold the bankruptcy belief sincerely. The sincerity is what makes the delegitimization work.
Belief: The Warren Court was the proper exercise of judicial power. The casebooks treat Brown v. Board of Education, Miranda v. Arizona, Reynolds v. Sims, and Gideon v. Wainwright as constitutional virtue. The belief is required because the coalition’s narrative of the proper Court depends on a sanctified baseline. A scholar who thought the Warren Court overreached in significant ways could not write the casebook the coalition needs.
Belief: The Roberts Court has gone seriously wrong. The Case Against the Supreme Court, Worse Than Nothing, and No Democracy Lasts Forever form a trilogy that escalates the indictment. The belief is required because the coalition’s current predicament demands a narrative of institutional capture by the rival side. A scholar who thought Dobbs and Bruen were correctly reasoned within the relevant interpretive tradition could not stay in the role.
Belief: Structural reform of the Constitution is necessary. No Democracy Lasts Forever makes the case at book length. The belief tracks the coalition’s current strategic position. The Senate, the Electoral College, the Court’s structure all became existential threats at the moment they began producing rival-coalition wins. The belief is convenient because the reforms it supports would advantage the coalition.
Belief: Diversity in the legal profession produces better legal thinking. The belief is convenient because the diversity vocabulary is the coalition’s instrument for filling positions with coalition-aligned scholars. A dean who thought diversity initiatives were ideologically selective rather than genuinely pluralistic could not run the school the coalition needs run.
Belief: Better arguments and clearer reasoning will resolve constitutional disagreement. The career consists of producing arguments and reasoning. If disagreement is irreducibly coalitional, the career produces noise. If disagreement is cognitive, the career produces value. The selection pressure produces scholars who hold the cognitive view sincerely. The sincerity is what lets the career feel like service to truth rather than service to coalition.
Belief: The legal academy is intellectually open. The actual ideological closure of the elite legal academy cannot be acknowledged at the level of stated belief without raising questions about whether the academy’s outputs are coalition products rather than scholarly products. The belief in openness is required to sustain the academy’s claim to scholarly authority. A dean who acknowledged the closure would have to acknowledge his own work as one side of a contest. The acknowledgment is structurally barred.
Belief: His own work is principled scholarship rather than coalition advocacy. The role requires this self-understanding. A scholar who saw himself as a coalition advocate dressed in scholarly clothing could not perform the role convincingly. Sincerity at this layer is the coalition’s primary resource. The selection pressure across fifty years produced exactly the kind of man for whom this sincerity is operative.
Turner’s broader work on tacit knowledge supplies the explanation for how the convenient beliefs get installed. They are not the result of conscious reasoning. They are the precipitate of long immersion in a particular professional culture. Harvard Law School in the late 1970s, the Civil Division of the Department of Justice, the law review tradition, the Supreme Court bar, the dean’s network, the casebook circuit, the AALS social world, the elite-law-school faculty meeting, the federal judicial clerkship pipeline. Each is a tacit formation that shapes belief without articulating its formation work as such.
By the time Chemerinsky’s beliefs become explicit in his casebooks and op-eds, the tacit work is finished. The beliefs flow from a long acculturation he cannot retrace and might not be able to recognize as acculturation. The casebook is the explicit output of beliefs the casebook author absorbed across decades of professional training that selected for those beliefs at every checkpoint.
A scholar trained in a parallel set of conservative legal institutions across the same period would emerge with parallel-but-opposed convenient beliefs, also held sincerely, also required by his role, also resistant to revision because the role and the man have grown together. The framework predicts this symmetry. The framework does not say either side’s convenient beliefs are factually incorrect. It says they are positionally generated and that the position generation is what the framework illuminates.
What might Chemerinsky lose if he abandoned the convenient beliefs? The deanship at Berkeley extends through June 2029. The casebook contracts. The op-ed slots at the Sacramento Bee, the ABA Journal, and the Los Angeles Daily Journal. The Supreme Court advocacy. The fellowship at the American Academy of Arts and Sciences. The presidency of the AALS would already be in the past, but its prestige would lose its meaning if the underlying beliefs that earned it were renounced. The honorary degrees. The press calls. The student adoration. The faculty deference. The book deals. The honoraria. The conferences. The television appearances.
He might also lose the social world that surrounds him. His wife Catherine Fisk holds the Barbara Nachtrieb Armstrong Professorship at Berkeley. His professional friendships are with colleagues who share the coalition. His grown children inhabit social worlds shaped by the coalition’s vocabulary. His donors, his alumni network, his deanship’s institutional connections all run through the coalition. Going beyond the convenient would not be a quiet revision of an opinion. It would be the dismantling of a life.
The framework does not say this calculation is conscious. It says the calculation operates whether or not the man performing it acknowledges it. The unprofitability of going beyond the convenient is structural. It does not require Chemerinsky to think about it for it to act on him.
The same calculation operates on the regents who extended his deanship, on the colleagues who recommend his work, on the editors who run his op-eds, on the publishers who reprint his casebooks, on the students who absorb his teaching, on the journalists who quote him as an authority. Each participant in the system has a parallel unprofitability calculation that aligns the system’s parts. The system holds together because the calculations align. Each participant gets what he needs by holding the beliefs the system requires of his position.
The framework’s sharpest claim is that the sincerity is essential and selected for. Chemerinsky’s sincerity is not in question. He believes what he says. He has believed it for decades. The belief shows up in his manner, his prose, his teaching, his decisions about which cases to take and which briefs to file. The framework does not contest the sincerity. It says the sincerity is the coalition’s most valuable resource and the selection pressure has filled the position with the man whose sincerity makes it possible.
A cynic in the deanship at Berkeley Law would not produce the same outputs. The casebook would not have the moral authority. The op-eds would not register as constitutional commentary. The Supreme Court arguments would not carry the same weight. The students would not learn the doctrine the same way. The coalition needs the sincere believer in the role. The sincere believer needs the role to live the life he has built. The arrangement is stable because both sides need it to be.
This is not deception. Turner is careful about this. The participants are not lying. The arrangement is honest at the level the participants can see. The framework operates at a level the participants are not equipped to see, because seeing it would dismantle the arrangement and the role and the career. The non-seeing is the operating condition. Chemerinsky cannot see what the framework sees, because seeing it would end his ability to do what he does. The career has selected against the cognitive operation that might disturb the career.
The deanship runs through June 2029. The framework predicts the convenient beliefs will hold across that period. He might publish further books. The books might extend the structural critique. The op-eds might continue. The Supreme Court arguments might continue. The casebooks might be updated. Each output will track the coalition’s needs at the moment of its production. None will involve a renunciation of the convenient beliefs, because the role would not survive the renunciation.
When he steps down from the deanship in 2029, he will be 76. He might write a memoir. The memoir might cast his career as principled scholarship across a period of constitutional retrenchment. The framework predicts this casting. A different casting would require a different career. The career he had produced the man he is. The man he is can write the memoir his career calls for.
The framework also predicts that the next generation of liberal legal academics will hold the same convenient beliefs Chemerinsky holds, with appropriate updates for changes in the coalition’s strategic position. The selection pressure that produced Chemerinsky continues to operate. The next dean of Berkeley Law, when one is selected to follow him, will be selected by evaluators applying the same criteria. The criteria might evolve at the margins. The basic structure will hold. The institution requires it.
The convenient beliefs framework does not say Chemerinsky’s beliefs are wrong. It says they are positionally generated. The same point applies to his rivals. Conservative legal scholars hold parallel-but-opposed convenient beliefs generated by their own positions. A Federalist Society scholar at a conservative-aligned institution faces analogous selection pressure, holds analogous role-required beliefs sincerely, and could be analyzed by the same framework with analogous results. The framework is not a partisan weapon. It applies to every position that has institutional infrastructure and selection pressure operating around it.
What the framework does is foreclose a particular kind of self-understanding. It removes the option of treating one’s beliefs as the output of pure reasoning by a free intellect. The intellect was formed inside an institution that selected for the formation it produced. The reasoning runs on cognitive material the institution supplied. The conclusions track the position the institution requires its occupant to hold.
Stephen Turner on the Tacit & Against Essentialism
Chemerinsky’s career rests on tacit formations he cannot fully articulate. He absorbed the dispositions of the elite legal academy across fifty years. The way to read a case. The way to teach a first-year class. The way to write an op-ed for the New York Times rather than for the National Review. The way to chair a meeting. The way to recognize promising scholarship from unpromising scholarship. The way to detect a colleague’s coalition position from how he formulates a question in a workshop. The way to know which judges merit respect in a casebook treatment and which merit dismissal. The way to know which dissents to feature and which to bury. The way to know what gets said in a faculty meeting and what gets said only after the meeting ends.
These are tacit knowledge in the precise sense Polanyi specified and Turner sharpened. Chemerinsky cannot teach them through propositions. He embodies them. They show up in his casebook structure, his prose rhythm, his case selections, his footnote choices, his classroom interactions, his deanship decisions. The tacit framework organizes his experience before any deliberation occurs.
Turner’s sharpening matters here. The tacit knowledge Chemerinsky possesses cannot be genuinely shared with his colleagues, his students, or his coalition members. What looks like a shared professional culture is a population of individuals whose formations resemble each other enough to permit coordination. The coalition coheres because the formations converge. The convergence is not the result of common content. It is the result of similar exposure to similar feedback across similar institutions over similar periods of time. Each member feels he shares the others’ tacit knowledge. The framework says no member actually shares it. Each carries his own version produced by his own history of formation.
This explains a feature of the elite legal academy that the academy cannot easily acknowledge. The academy treats its convergent judgments as evidence of professional consensus arrived at through independent reasoning. The framework treats the convergence as the predictable output of a population trained in the same institutions to make the same kinds of distinctions. The convergence is real. The independence is not. The academy’s belief in its own independent judgment is a coalition asset that the framework removes.
Constitutional Law: Principles and Policies presents itself as the explicit transmission of doctrinal content. The cases are excerpted. The doctrines are stated. The notes pose questions. The casebook is the artifact through which the academy transmits constitutional law to the next generation of lawyers.
Turner’s framework reveals what is actually happening. The casebook is a vehicle for tacit transmission disguised as explicit transmission. The doctrinal content is the carrier. The tacit content is the payload. Law students who master the casebook do not just learn what the cases say. They learn what counts as a good argument and what counts as a wrong-headed argument. They learn which justices merit professional respect and which merit professional dismissal. They learn which intellectual moves are sophisticated and which are amateurish. They learn the prose style of the credentialed legal scholar. They learn the citation patterns of the field. They learn the implicit hierarchy of cases. They learn what to put on the bar exam and what to leave off. They learn the disposition of the law professor.
None of this gets stated. The casebook transmits it through the way the cases get presented, the way the questions get framed, the way the historical context gets sketched, the way the dissents get treated, the way the law review articles get cited. The student who masters the casebook has acquired the tacit framework of the elite legal academy. He could not state the framework. He could not teach it as such. He could only teach it the way he learned it, through long exposure to professionally formed material organized by professionally formed instructors.
The casebook is therefore the most efficient piece of coalition reproduction that the academy possesses. It pretends to do explicit work and does tacit work as well. The student who emerges from the first-year course taught from this casebook has been formed in ways the formation cannot acknowledge. The formation is what makes the student a member of the coalition. The doctrine he can state is the surface. The disposition he has absorbed is the substance.
The tacit framework explains a recurring feature of Chemerinsky’s books. Worse Than Nothing could not persuade originalists. The Case Against the Supreme Court could not persuade conservative legal scholars. No Democracy Lasts Forever will not persuade conservative voters. The books address their targets as if the targets shared Chemerinsky’s tacit framework and were drawing wrong conclusions from it. The targets do not share his framework. They have been formed in different institutions that produced different perceptual worlds.
Originalist scholars trained at the University of Chicago, Notre Dame, George Mason, or in Federalist Society networks have absorbed a different tacit framework. They see different objects when they read constitutional text. They feel different argumentative moves as compelling. They recognize different scholars as professional and different scholars as amateurish. Chemerinsky’s books cannot reach them because the reaching would require a translation across tacit frameworks that no propositional argument can perform. Turner says this directly. Tacit knowledge is not transmitted through propositions. The originalists are not failing to grasp Chemerinsky’s arguments. They are reading the arguments through a tacit framework that registers different things as relevant, different inferences as licit, different moves as sophisticated. The argument lands in their hands as a foreign object.
The same point cuts the other way. Conservative legal scholars writing books to persuade liberal scholars produce work that liberal scholars find unconvincing for symmetrical reasons. The contest is not at the level of arguments. It is at the level of formations. Neither side can persuade the other through writing, because the writing presupposes a shared framework that does not exist.
This is what makes the elite legal academy’s confidence in its own arguments so striking when viewed from outside. The academy cannot persuade the rival coalition. It does not need to. It has captured the institutional infrastructure that credentials legal interpretation. The academy talks to itself, reproduces itself, and treats the rival coalition’s failure to be persuaded as evidence of the rival’s bad faith or intellectual deficiency. The tacit framework prevents the academy from recognizing that the rival’s failure to be persuaded is the predictable outcome of a parallel formation that produces parallel inability.
The casebook tradition treats constitutional doctrines as if they had stable essences that the cases progressively reveal. The Equal Protection Clause has an essence. The First Amendment has an essence. The Due Process Clause has an essence. The cases are episodes in the unfolding revelation of the essences. The casebook teaches what the essences are.
Turner’s anti-essentialism cuts straight through this. The clauses do not have essences. They have texts, histories of judicial interpretation, and ongoing reconstructions. Each generation of judges and scholars reconstructs what the clauses mean in light of present concerns and coalition needs. The appearance of continuity in constitutional doctrine is produced by the interpreters, not discovered in the material. Chemerinsky’s casebook reads continuity into the case law because continuity is what the casebook tradition requires. A casebook that presented the clauses as raw material that each generation reshapes for present purposes would not be a casebook. It would be a critical history of constitutional interpretation. It would not be teachable as doctrine. It would not certify the academy’s professional authority over constitutional meaning.
The essentialism in the casebook is doing institutional work. The work is the maintenance of the academy’s claim to discover what the clauses mean. If the clauses have no essences, the academy’s discovery work collapses. The clauses become raw material that any reasonably literate citizen could read for himself with the help of a critical history. The professionalization that supports the casebook tradition, the law school, the bar exam, the appellate practice, and the deanship at Berkeley loses its foundation. The essentialist framing is not incidental to the role. The role requires it.
Chemerinsky invokes the rule of law constantly. The rule of law is threatened by Trump. The rule of law requires defense. The rule of law must be preserved. His most recent stated priority for the deanship through 2029 is to strengthen Berkeley’s role in defending the rule of law.
Turner would press the question. What stable essence does “rule of law” name? The phrase functions across his work as a placeholder for whatever conclusions his coalition needs at the moment of utterance. When Trump fires officials at Justice, the rule of law is threatened. When the Biden administration cancels student debt without statutory authorization, the rule of law is not described in the same terms. When conservative justices apply the major questions doctrine, they violate the rule of law. When liberal justices applied substantive due process to find new rights in Roe, the rule of law was not framed the same way. When Republican attorneys general bring nationwide injunctions, the rule of law is endangered. When Democratic attorneys general brought parallel injunctions during the Trump administration, the framing differed.
The phrase is doing coalition work, not analytical work. It marks the coalition’s preferred outcomes as required by an essential value while marking the rival coalition’s preferred outcomes as violations of that value. The same essentialist apparatus operates around “constitutional democracy,” “civil rights,” “civil liberties,” “equality,” “liberty,” and “due process.” Each gets used as if it named a stable underlying property whose requirements can be discovered through careful interpretation. Each, on the framework, names a placeholder reconstructed at each moment of use to produce the conclusions the coalition needs.
The user does not experience the reconstruction. He experiences the words as naming fixed essences. The training selected for users who experience them this way. The selection is required for the user to perform the role with the sincerity the role demands.
Turner’s anti-essentialism has its sharpest edge here. The legal academy claims that constitutional interpretation requires a professional competence. The competence is acquired through long training in elite institutions. Lay readings of the document are not adequate. The trained lawyer reads cases differently from the untrained citizen. The dean of Berkeley Law possesses a level of this competence that few others reach.
Turner says the entire structure is a closure strategy. The competence is not ineffable. It is a particular formation that the academy has elevated to the status of unique professional skill. The reason it cannot be publicly evaluated is that public evaluation would expose its coalition specificity. The training produces formations that converge on the coalition’s preferred conclusions. The convergence gets sold as professional competence. The non-trained citizen who reads the Constitution and reaches different conclusions is told he lacks the competence to reach the right ones. The competence’s content is the coalition’s preferred conclusions. The closure runs on the essentialist claim that the competence names a real thing.
The deanship at Berkeley operates inside this closure. Chemerinsky’s authority depends on the academy’s monopoly on the certification of legal interpretation. The monopoly depends on the essentialist claim about professional competence. The essentialist claim depends on the public’s willingness to defer to the academy’s self-description. As that deference erodes, the closure weakens. No Democracy Lasts Forever and similar books read, inside the academy, as the careful warnings of an elder statesman. They read, outside the academy, as evidence that the academy has lost the capacity to credential itself as a neutral source. The closure cannot survive too much exposure. The exposure is what populist movements perform on the academy. The academy responds by tightening the closure. The tightening accelerates the exposure. The cycle does not have a stable equilibrium.
The anti-essentialist move that would dissolve Chemerinsky’s institutional position is the move that says the elite legal academy is one coalition among many that interpret the Constitution. Originalist scholars at the University of Chicago and George Mason have their formation. Libertarian scholars at law-and-economics institutions have theirs. Christian-tradition scholars at religious universities have theirs. Populist constitutional thinkers outside the academy have theirs. Each formation produces conclusions that the formation’s training selects for. None has privileged access to the document’s essence, because the document has no essence. None has a special competence that the others lack, because no special competence exists in the form the academy claims.
This move would relocate Chemerinsky’s coalition as one party in a contest of coalitions rather than the neutral arbiter standing above the contest. The casebook would lose its claim to canonical status. The op-eds would lose their certification by neutral expertise. The Supreme Court arguments would lose their special weight. The deanship would be the leadership of one school among many, not the leadership of a temple of professional knowledge.
Chemerinsky cannot make the move. The role he occupies requires the essentialist framing. A scholar who made the anti-essentialist move would have to abandon the casebook tradition, the deanship, and the public-intellectual position. No one in the role makes the move. The selection pressure prevents the move from being made by anyone who reaches the role. By the time a scholar has been selected enough times to occupy the deanship at Berkeley, the formation that produced him has installed the essentialist framing at a tacit level that cannot be undone by argument.
The anti-essentialism Turner deploys against the legal academy applies with equal force to other essentialist coalitions. The Seventh-day Adventist Church at the 1980 Glacier View Sanctuary Review Committee treated the investigative judgment doctrine as an essential teaching recoverable through careful biblical study. My father Desmond Ford argued the doctrine was a contingent reading produced by specific historical circumstances. The SRC’s response treated the church’s interpretation as the essence and Ford’s as deviation. Turner would say there is no essence of Adventism. There is a tradition that each generation reconstructs. The appearance of continuity is produced by the interpreters who select which earlier readings count as authentic.
The structural parallel to the elite legal academy is exact. The Constitution stands in for the Bible. The casebook stands in for the church’s authoritative theological texts. The dean stands in for the SRC chairman. The bar exam stands in for the credentialing exams the church used to certify its ministers. “The rule of law” stands in for the investigative judgment, the doctrine whose contested status cannot be acknowledged without dissolving the coalition. The coalition members hold the essentialist beliefs sincerely in both cases. The sincerity is what the coalition requires in both cases. The selection pressure that produces the credentialed insider operates in both cases. The closure that protects the coalition from outside scrutiny works through the same mechanisms in both cases.
The convenient beliefs framework already named the institutional cost of going beyond what is convenient. The tacit framework adds the cognitive cost. If Chemerinsky’s most consequential beliefs are tacit rather than explicit, the cost of abandoning them is not just the deanship and the casebook contracts. It is the perceptual framework that has organized his experience for fifty years. He would lose the way of seeing that the formation produced. He would lose the categories through which the world has appeared to him as legible.
Turner emphasizes this point. The cost of going beyond the convenient is structural. It removes a man from a world. The world is constituted by the tacit framework his formation installed. Without the framework he is not just out of a job. He is in a different cognitive environment that he is not equipped to inhabit. He would have to rebuild the perceptual apparatus from a different foundation, at the age of seventy-three, while continuing to maintain his marriage to a Berkeley law professor, his relationships with children embedded in the same coalition, and his identity as the figure he has been for half a century. The rebuild is not feasible. The framework predicts that no one in his position attempts it.
The convenient beliefs framework predicted continuation through 2029. The tacit framework explains why continuation is the only possible outcome. He cannot see what the framework sees. The seeing would require a reformation of the perceptual apparatus that fifty years of formation has installed. The reformation is not available to a man at his stage of life inside his institutional position. The framework treats this as the normal condition of high-status late-career institutional figures.
Buffered & Porous Selves
Chemerinsky presents at every level as the buffered scholar. The voice in his op-eds is the voice of a free intellect examining constitutional questions and reaching conclusions reason supports. The casebook narrates doctrine as the output of careful judicial reasoning across cases. The Supreme Court arguments perform the role of the lawyer who has studied the question and arrived at the position the law requires. The deanship runs the school in the buffered register: hiring decisions, curriculum committees, alumni events all conducted in the language of professional excellence and institutional service.
The personal manner reinforces the buffered self-image. He returns student emails. He answers reporter questions. He writes back to obscure correspondents. The accessibility says: I am a person you can reason with. I am not above reason. I do not impose my views from a tribal position. I engage with arguments. I respond to better arguments by changing my mind. This is the buffered self in operation. It is what the role requires.
The framework inverts the picture. Chemerinsky is socially constituted by his coalition no less than any rival coalition member is constituted by his. His “reasoning” is the explicit form his tribal commitments take. The casebooks present the coalition’s reading of the Constitution as the output of careful analysis. The op-eds deliver the coalition’s lines in buffered vocabulary. The Supreme Court arguments advance the coalition’s positions in cases the coalition selected. The deanship reproduces the coalition’s institutional infrastructure for the next generation. The buffered self-presentation does not describe what is happening. It masks what is happening.
The masking is not deceit. Chemerinsky probably experiences himself as the buffered scholar he presents as. The selection pressure that placed him at the center of the institution chose for candidates who could experience themselves this way. The training apparatus that formed him installed the buffered phenomenology at a tacit level he cannot reach by deliberate examination. The framework does not say he is lying about being buffered. It says the experience he reports does not track what is actually happening at the level of social constitution. The experience is real. The self-understanding is inaccurate.
The whole edifice of constitutional doctrine that Chemerinsky teaches presupposes buffered selves. Equal protection assumes citizens can abstract from race, sex, and religion to reason about state action. Due process assumes the capacity to evaluate procedure independently of substantive outcomes. Free exercise assumes the ability to evaluate religious claims from outside any religious commitment. The First Amendment’s speech doctrine assumes a marketplace of ideas where buffered reasoners weigh competing claims. The Establishment Clause assumes a public square where religious commitments can be set aside for deliberation. The procedural due-process tradition assumes buffered participants who can submit their conflicts to neutral adjudication.
This is the Enlightenment buffered self codified as constitutional doctrine. The codification was a cultural achievement of the post-Reformation Anglo-American legal tradition, refined through Madison, Marshall, and the long elaboration that produced the modern American legal academy. The codification produces real institutional goods. Reductions in religious conflict. Procedures that allow plural societies to coexist without civil war. Enforceable constraints on state power that protect minorities from the immediate operation of porous majoritarian sentiment.
These goods are real. The framework does not deny them. The framework points out that the doctrine assumes a phenomenology that most members of the polity do not actually inhabit. The doctrine speaks to buffered reasoners who can abstract from their commitments. Most Americans cannot do this and have not been trained to. They operate as porous tribal members whose religious, racial, ethnic, and class commitments are constitutive rather than reflective. The doctrine is addressed to a citizen-type that the institutional infrastructure of the elite legal academy produces in a small slice of the population. The rest of the population is governed by the doctrine without inhabiting the phenomenology the doctrine assumes.
Chemerinsky’s casebook teaches the doctrine in its buffered register. The students who absorb the casebook learn to inhabit the register. They graduate into the lawyering, judging, and academic positions that operate the apparatus. The apparatus continues to govern a population most of whose members never enter the buffered phenomenology. The asymmetry between the apparatus and the population is part of what produces the recurring populist response to the apparatus. The populists experience themselves as a porous tribe being governed by buffered procedures that fail to recognize them as such.
The buffered framework gets applied asymmetrically. Chemerinsky’s coalition treats its own commitments as the conclusions of buffered reasoning and treats the rival coalition’s commitments as the products of porous tribal attachment. Conservative religious voters are described as motivated by religious sentiment. Working-class white voters are described as motivated by racial anxiety. Pro-life voters are described as motivated by patriarchal commitment. Each rival-coalition position gets coded as porous and therefore as not entitled to the buffered framework’s neutral protections.
Chemerinsky’s coalition’s own commitments get coded differently. Pro-choice positions are described as the conclusions of careful reasoning about bodily autonomy. Affirmative-action positions are described as the application of equal-protection logic. Same-sex-marriage positions are described as the working-out of the equal-dignity principle the Constitution requires. The coalition’s positions are buffered conclusions. The rival coalition’s positions are porous attachments.
The asymmetric coding is itself a coalition move. Both coalitions are operating from porous tribal commitments. The dominant coalition has access to the buffered vocabulary that allows its commitments to be presented as neutral conclusions. The rival coalition does not have parallel access. The asymmetry is not the result of differential reasoning capacity. It is the result of differential institutional control over the credentialing apparatus that distributes the buffered vocabulary.
The framework exposes the asymmetry. The dominant coalition’s commitments are no less tribal than the rival coalition’s. The dominant coalition’s members were socialized in elite institutions that produced specific tribal commitments dressed in buffered vocabulary. The rival coalition’s members were socialized in different institutions that produced different tribal commitments without the buffered dressing. The contest is between tribes. The dominant tribe controls the vocabulary that pretends the contest is between buffered reasoning and porous attachment. Chemerinsky operates this vocabulary at the highest level of the institutional infrastructure that produces and certifies it.
Berkeley Law, like the elite American legal academy generally, operates as an institution for producing buffered selves. The Socratic method trains students to abstract from their personal commitments and reason about cases as if they had no personal stake. The casebook tradition presents constitutional doctrine as the output of buffered analysis rather than coalition contest. The law review system trains students to write in the buffered prose register, with proper citation to authority, qualification of claims, and avoidance of personal voice. Moot court trains students to argue both sides with equal facility. Clinical programs train students to apply legal frameworks to client problems regardless of personal sympathy.
The whole apparatus is designed to produce people who can experience their professional work as buffered analysis. The students who emerge with their JDs have been formed in ways the formation cannot acknowledge. They will spend their careers experiencing themselves as professional reasoners who happen to reach progressive conclusions, not as coalition members whose conclusions are the predictable output of the formation that produced them.
The framework reads the formation as producing buffered phenomenology in students who remain tribally constituted. The phenomenology masks the constitution. The masking is what the institution requires. A student who recognized the formation as tribal constitution rather than as buffered training could not be certified as a professional. The certification requires the buffered self-experience. The career runs on the certification. The institution’s reproduction depends on producing graduates who hold the buffered self-experience sincerely.
Chemerinsky as dean is the chief operator of this production apparatus at one of the country’s two leading public law schools. He selects the faculty, sets the curriculum, fundraises for the operation, and presides over its public face. His sincerity in the role is the institution’s most valuable asset. A dean who recognized the apparatus as a tribal-constitution-with-buffered-vocabulary system could not run it. The position requires the non-recognition.
Taylor and Caldwell after him noted that the buffered turn produces a specific civilizational thinness. The buffered society knows how to adjudicate disputes through procedure. It struggles to say what is worth defending substantively. Procedural commitments substitute for substantive ones. The ability to say “this violates due process” or “this raises equal-protection concerns” substitutes for the ability to say “this is sacred and must not be touched.”
Chemerinsky’s books illustrate the thinness. No Democracy Lasts Forever identifies structural threats to American democracy without producing a substantive account of what American democracy is for. The defense is procedural. Equal representation. Majoritarian rule. Anti-corruption safeguards. These are buffered commitments. The book does not say what substantive vision the American polity should pursue once the procedural defenses have been repaired. The substantive question lies outside the buffered frame’s competence.
The same thinness shows in the casebooks. The casebooks teach the doctrines that constrain government power and protect individual rights. They do not teach what citizens should use their rights to do. The doctrinal apparatus presupposes a population whose substantive commitments are the citizens’ own private business. The buffered frame defers the substantive question to private deliberation it does not undertake to organize.
The thinness becomes a strategic vulnerability when the rival coalition arrives with substantive commitments and a willingness to defend them in porous register. The populist movements that have driven American politics since the 2010s operate with substantive commitments that the buffered apparatus cannot match. Trump’s coalition does not argue procedurally. It argues from substantive vision: what America is, who Americans are, what threatens them, what they owe each other. Chemerinsky’s coalition cannot argue at this level because the buffered apparatus that produced the coalition trained its members not to. The coalition can argue procedural responses to populist substance. It cannot argue substance against substance. The contest is asymmetric. The buffered side defends procedure. The porous side defends a way of life. The procedure cannot win the contest at the level the contest is being fought.
Chemerinsky’s recent structural-reform books are attempts to cross from procedure to substance, but they cross only halfway. The substance offered is the substance of procedural reform: change the Senate’s malapportionment, reform the Electoral College, restructure the Court. The substance is procedural-substance, not substantive-substance. The books cannot supply the kind of vision that competes with populist substance, because the apparatus that formed Chemerinsky cannot produce that kind of vision. He is doing what his formation equipped him to do. The formation did not equip him for the task at hand.
Christopher Caldwell’s Reflections on the Revolution in Europe described post-1960s Europe as a civilization of buffered selves meeting porous immigrant communities from traditional societies. The buffered side did not understand what was happening because its self-understanding masked the tribal substrate that the porous side recognized openly. Liberal theory predicted that exposure to choice would dissolve thick identities. Caldwell observed that exposure to a thin environment intensified the desire for thickness. The asymmetry ran against what the dominant theory expected.
The same logic applies to the contest between Chemerinsky’s coalition and the populist movements that have eroded its position. The coalition operates inside the buffered apparatus. The populists operate from a more porous register. The coalition cannot understand the populists because the buffered apparatus does not give it the categories to recognize what the populists are doing. The populists understand themselves as a tribe defending its territory. The coalition understands itself as a neutral expertise being attacked by irrational populism.
The framework sees both sides as tribes. The populists are porous tribes that know they are tribes. The coalition is a buffered tribe that does not know it is a tribe. The buffered tribe’s self-understanding handicaps it in the contest. Its members continue to believe they are the neutral guardians of universal principles. They continue to believe their rivals are deviating from the universal principles for tribal reasons. They continue to address the rivals with arguments that assume a shared buffered framework. The arguments fail to land because the rivals do not inhabit the framework. The coalition keeps writing the same kinds of books, filing the same kinds of briefs, producing the same kinds of casebooks, expecting the same kinds of responses, and getting different responses than its self-understanding predicts.
Chemerinsky’s career has spanned the period in which this asymmetry has become structurally visible. The coalition continues to operate as if the period before the asymmetry became visible were the normal condition. Chemerinsky’s deanship through 2029 might continue extending this assumption. The framework predicts the assumption will continue to fail at the level of producing the outcomes the coalition wants. The deanship will not fail. The casebook will not fail. The op-eds will not fail. The structural outcomes the coalition needs will continue to fail because the apparatus is not designed to produce those outcomes against porous opposition.
A buffered scholar who recognized that his buffered self-understanding masks his tribal constitution would have to operate from a different position. He would have to recognize his work as one tribe’s coalition advocacy dressed in the vocabulary of neutral expertise. The career cannot survive that recognition. The casebook cannot be written from that position. The op-eds cannot be filed in that voice. The Supreme Court arguments cannot be made under that self-description. The deanship cannot be operated by a man who sees the school as one tribe’s institutional infrastructure rather than as a temple of professional knowledge.
The selection pressure that produced Chemerinsky’s career screened against candidates who might make the move. Each step of the fifty-year selection sequence chose for candidates who could inhabit the buffered phenomenology sincerely. By the time a man has been selected enough times to reach the Berkeley deanship, the buffered phenomenology is installed at a tacit level that cannot be undone by argument. The Turner-on-the-tacit reading already established this point. The buffered self-experience is the cognitive layer on which the convenient beliefs, the charisma, the trauma narrations, and the coalition advocacy all run. Disturbing the buffered phenomenology would dismantle every higher layer.
The Great Delusion
In his 2018 book, The Great Delusion: Liberal Dreams and International Realities, John J. Mearsheimer wrote:
My view is that we are profoundly social beings from the start to the finish of our lives and that individualism is of secondary importance… Liberalism downplays the social nature of human beings to the point of almost ignoring it, instead treating people largely as atomistic actors… Political liberalism… is an ideology that is individualistic at its core and assigns great importance to the concept of inalienable rights. This concern for rights is the basis of its universalism—everyone on the planet has the same inherent set of rights—and this is what motivates liberal states to pursue ambitious foreign policies. The public and scholarly discourse about liberalism since World War II has placed enormous emphasis on what are commonly called human rights. This is true all around the world, not just in the West. “Human rights,” Samuel Moyn notes, “have come to define the most elevated aspirations of both social movements and political entities—state and interstate. They evoke hope and provoke action.”
[Humans] do not operate as lone wolves but are born into social groups or societies that shape their identities well before they can assert their individualism. Moreover, individuals usually develop strong attachments to their group and are sometimes willing to make great sacrifices for their fellow members. Humans are often said to be tribal at their core. The main reason for our social nature is that the best way for a person to survive is to be embedded in a society and to cooperate with fellow members rather than act alone… Despite its elevated ranking, reason is the least important of the three ways we determine our preferences. It certainly is less important than socialization. The main reason socialization matters so much is that humans have a long childhood in which they are protected and nurtured by their families and the surrounding society, and meanwhile exposed to intense socialization. At the same time, they are only beginning to develop their critical faculties, so they are not equipped to think for themselves. By the time an individual reaches the point where his reasoning skills are well developed, his family and society have already imposed an enormous value infusion on him. Moreover, that individual is born with innate sentiments that also strongly influence how he thinks about the world around him. All of this means that people have limited choice in formulating a moral code, because so much of their thinking about right and wrong comes from inborn attitudes and socialization.
The passage attacks three pillars at once. The atomistic individual is not what humans are. Inalienable rights and universalism are a particular ideology, not a discovery about human nature. Reason is the least important of the three forces that determine human preferences, well behind socialization and inborn sentiment. Chemerinsky’s career rests on the inversion of all three claims. If Mearsheimer is right, the inversion produced the man and the institution he runs. The career has been a fifty-year expression of the framework Mearsheimer says misdescribes what we are.
The casebook tradition assumes that reason can be taught, transmitted, and exercised. Constitutional Law: Principles and Policies teaches the doctrines. The student reasons through the cases. The graduate applies the reasoning to new problems. The whole apparatus presupposes that reasoning is the operative human capacity in legal life and that better reasoning produces better legal outcomes.
If reason is the least important of the three determinants of human preference, the casebook tradition is doing something different from what it claims to be doing. It is not training reasoners. It is socializing apprentices into a tribe’s vocabulary at the moment in their lives when their critical faculties are not yet equipped to push back. Most American law students enter their first-year constitutional law course at twenty-three or twenty-four. They have already absorbed an enormous value infusion from family, schooling, and elite university culture. The first-year course operates on the next layer down. The casebook installs the legal-academic register on top of the socialization the student already carries. By the end of the year the student has new tacit equipment for evaluating legal claims. The student experiences the equipment as reasoning capacity. The framework says the equipment is socialization in reasoning’s clothing.
This means Chemerinsky’s lifework as a casebook author has been an efficient socialization operation. Generations of lawyers carry his casebook’s tacit framework as their professional formation. They reach the conclusions the casebook prepared them to reach. They experience the conclusions as the outputs of careful study. The framework does not deny that the study happened. It says the study was socialization into a coalition’s preferences, dressed in the vocabulary of reason. The man who authored the casebook holds the same self-understanding the casebook installs in its readers. He cannot see the operation for what the framework says it is.
Chemerinsky’s career has been organized around inalienable rights. The right to abortion, the right to same-sex marriage, the right to vote, the right to free expression, the right to equal protection, the right to be free from unreasonable searches. Each gets defended as something humans possess by virtue of being human. The universalism is the moral engine. If everyone has these rights, then rights talk reaches across coalition lines and grounds claims that any reasonable person should accept.
Mearsheimer’s passage strips the universalism. Humans do not bear inalienable rights as natural-kind properties. They bear obligations, attachments, and inherited commitments produced by their socialization. The rights vocabulary is one tribe’s moral language. Other tribes use other languages: honor, duty, sanctity, lineage, communal flourishing, divine command. The American legal academy’s success in establishing rights talk as the dominant moral vocabulary is a coalition achievement, not a discovery. The achievement extends only as far as the institutional infrastructure that produces and certifies the vocabulary extends. Outside that range, other moral languages operate. The rights claim does not register the way the academy expects it to register.
This explains a feature of Chemerinsky’s career that the buffered-liberal frame cannot easily explain. His arguments do not persuade conservative legal scholars. His arguments do not persuade conservative judges. His arguments do not persuade the conservative half of the electorate. The non-persuasion has been a constant across fifty years. The framework predicts the non-persuasion. The other tribes are not failing to grasp his arguments. They are operating in different moral languages produced by different socialization streams. The rights vocabulary that organizes Chemerinsky’s coalition has no purchase outside the coalition. The arguments land in foreign hands and produce nothing.
The framework also predicts that Chemerinsky cannot recognize this. To recognize it might require him to relinquish the universalism that has organized his career. The relinquishment would dissolve the work. The work cannot dissolve. So the recognition does not come.
The passage cuts even harder when applied to Chemerinsky’s account of himself. He has cited his Chicago South Side working-class Jewish childhood, his debate-team training at Northwestern, his Harvard Law education, and his subsequent career as the formative experiences that shaped his intellectual commitments. The narrative places the formation as background. The commitments arrived later, through study and reflection.
Mearsheimer says no. The formation is the commitments. By the time a child has reached an age at which his critical faculties are mature enough to evaluate his inherited values, the values are already installed. The young Chemerinsky who entered Harvard in 1975 did not arrive as a buffered reasoner about to consider American constitutional law on the merits. He arrived as a twenty-two-year-old whose values had been installed by his family, his Jewish community, his elite-university socialization, his peer group, and the American liberal political culture of the post-Watergate moment. Harvard Law School operated on the values already in place. The school did not teach him constitutional law from a neutral starting point. It refined and deepened the value infusion he already carried, in a register that flattered the formation by calling it reasoning.
His seventy-three years of life have been continuous socialization in the same direction. Each step deepened the formation. Each step gave him stronger experiential confirmation that the values he held were the conclusions reason supports. The formation produced a man who cannot recognize the formation as formation. He recognizes it as the gradual accumulation of insight. The framework says insight is downstream of socialization. The man and his self-understanding are both products of the formation that produced them.
A scholar who absorbed the same passages from Mearsheimer at twenty-five might be reshaped by them. A scholar who encounters them at seventy-three has fifty years of formation operating against any reshaping. The formation tells him the passages are wrong. The formation generates the rebuttals. The formation experiences the rebuttals as the application of his trained reasoning to a flawed argument. Mearsheimer’s passage cannot reach him because Mearsheimer’s passage operates at a layer below the layer his trained reasoning reaches.
If humans are tribal at their core and rights talk is one tribe’s vocabulary, the entire constitutional-law project gets relocated. Constitutional law is the apparatus through which one tribe, the post-Reformation Anglo-American liberal-rationalist coalition, has elaborated its values into enforceable doctrine. The doctrine assumes a buffered-individualist anthropology that the tribe’s institutions produce in its members. Members of the tribe inhabit the anthropology and find the doctrine natural. Non-members do not inhabit the anthropology and find the doctrine alien.
The American constitutional tradition succeeded for a long period because the tribe controlled the credentialing institutions and could enforce the anthropology on the rest of the country through professional certification of legal interpretation. Public deference to the tribe’s authority allowed the doctrine to govern populations that did not share the anthropology. The deference rested on the tribe’s prestige and on the absence of organized rival vocabularies in the public square. Both conditions have eroded. The deference is gone or going. Rival vocabularies have organized themselves through populist media, religious institutions, and dissident intellectual networks. The tribe’s apparatus continues to operate but no longer commands the public assent that let it govern.
Chemerinsky’s career covers the period of the deference’s slow loss. He came of age when deference was nearly total. He has worked through the long erosion. He retires into a moment when the erosion is structurally visible. His framework cannot accommodate what is happening because his framework presents constitutional law as a universal discovery rather than as one tribe’s apparatus. He sees the erosion as failure of public reasoning. The framework says the erosion is the rival tribes asserting their own anthropologies against the tribe whose monopoly is ending.
Buffered-liberal anthropology defers all substantive moral content to private deliberation. The public framework supplies procedure and rights talk. Substantive vision lives somewhere else: in private conscience, in voluntary community, in chosen association. The framework cannot itself supply substantive vision because it has located substantive vision outside its competence.
If reason is downstream of socialization and humans are constituted by their attachments rather than by their choices, the buffered-liberal deferral does not work. The substantive content does not live somewhere else. It lives in the inherited commitments the framework was supposed to bracket. The framework does not bracket the commitments. It tries to govern through them while pretending they are not there. The pretending succeeds while the dominant tribe controls the institutions. The pretending fails when the dominant tribe loses control.
The populist movements that have arisen across the West are the substantive content the buffered framework had bracketed asserting itself. The frameworks tried to manage substance by procedure. The substance has reasserted itself in porous register. The buffered framework cannot match it because the framework was built on the premise that substance does not belong in public deliberation. Chemerinsky’s structural-reform proposals are the framework’s attempt to address the substantive challenge by improving the procedure. The framework cannot accept that procedure is not what is at issue. The issue is which substantive vision will organize American public life. The framework Chemerinsky inhabits forecloses the question.
The Berkeley regents extended Chemerinsky’s deanship through June 30, 2029. The framework predicts what the next three years might look like. He continues to train the next generation of lawyers in the buffered-liberal anthropology. The graduates enter a country whose dominant currents have rejected the anthropology or never adopted it. The graduates find this surprising. Chemerinsky finds this surprising. The graduates write op-eds blaming voter ignorance, media manipulation, and democratic backsliding. Chemerinsky writes books making structural-reform arguments. The books and op-eds reach the audience that already shares the anthropology. They do not reach the rest of the country. The mismatch continues.
He might publish another book before he steps down. The book might extend the structural-reform argument or might address some new constitutional crisis. The book might be received warmly inside his coalition. The book might fail to alter the political situation. The framework predicts every step of this trajectory. The trajectory continues because the man and the institution that produced him cannot do otherwise. The selection pressure that put him in the role chose for the candidate who would do exactly what he is doing.
When he steps down, he might write a memoir. The memoir might frame the career as service to constitutional values across a period of constitutional retrenchment. The framework predicts the framing. A memoir written from outside the buffered-liberal anthropology would have to recognize the career as one tribe’s institutional service. He cannot write that memoir. The man he is cannot inhabit the position from which it might be written.
The hardest implication of Mearsheimer’s passage for Chemerinsky is that he cannot reason his way out of the framework his formation installed. The framework’s account of human preference formation tells him reasoning operates downstream of socialization. He has fifty years of socialization in the buffered-liberal tradition. Whatever reasoning he applies to his own situation will be the reasoning the formation produced. The reasoning cannot reach the layer at which the formation operates. The reasoning is the formation’s output, not its examiner.
This is what makes the framework most disturbing for him. Other frameworks suggest that better arguments might persuade. The misunderstanding myth says clearer reasoning resolves disagreement. The convenient beliefs framework says social pressure prevents recognition. Each suggests an Archimedean point from which a man might examine his commitments. Mearsheimer’s passage forecloses the Archimedean point. There is no view from nowhere. There is no buffered self standing behind the commitments evaluating them. The commitments are the man. The reasoning is the commitments operating in their explicit register. There is nothing else there.
A scholar who fully accepted this passage could not continue to do constitutional law as Chemerinsky does it. The whole apparatus presupposes that better reasoning produces better outcomes and that students can be trained to reason about cases as buffered analysts. The passage says no such training is happening. What is happening is socialization that the trainee experiences as reasoning. The casebook is a socialization instrument. The deanship is a socialization-administration position. The Supreme Court arguments are socialization performance. The op-eds are socialization in print form. None of this is what the man doing it experiences himself as doing. The framework predicts the gap between the experience and the activity. The framework predicts that the gap cannot be closed from inside.
Where the framework cuts asymmetrically is at the level of self-understanding. Chemerinsky’s coalition believes its preferences are the conclusions of universal reason. The rival coalitions know their preferences are tribal commitments. The asymmetry favors the rival coalitions in the contest now under way, because the buffered tribe cannot deploy substantive vision while the porous tribes can. The contest is not between universal reason and parochial tribalism, as Chemerinsky’s framework supposes. The contest is between two kinds of tribes, one of which has lost the capacity to recognize itself as a tribe and the other of which has not. The losing tribe in this match is the one that cannot see itself.
If the passage is correct, the late period of Chemerinsky’s career places him in a position the framework can describe but he cannot inhabit. He continues to do work that he experiences as principled scholarship while the work continues to fail at producing the political outcomes his coalition needs. He continues to write books that he experiences as careful constitutional analysis while the books fail to persuade anyone outside the coalition that already shares his premises. He continues to run a temple of professional legal knowledge while the country increasingly views the temple as one party’s institutional infrastructure rather than as a neutral source.
He cannot acknowledge any of this in the terms the framework supplies. He can acknowledge versions of it in his own terms. He can say the country has lost faith in expertise. He can say populism has poisoned discourse. He can say the conservative legal movement has captured the Court. Each of these formulations preserves his framework while gesturing at the trouble. The framework says the trouble lies one level deeper than his formulations can reach. The deeper level is the human anthropology his framework misdescribes. The misdescription has organized his entire career. The career cannot survive the recognition. The recognition therefore does not come.
He retires in 2029 at seventy-six, having served as the most credentialed and visible expression of the buffered-liberal legal tradition in his generation. The tradition continues to operate inside the institutions he leaves behind. The country in which the institutions operate continues to drift away from the anthropology the tradition presupposes. The drift might accelerate, slow, or reverse, but the framework predicts the drift will not be addressed by the kind of work the tradition produces. The tradition’s tools are not designed for the contest now under way. Chemerinsky completes his career inside a framework that gave him every honor it could give and that could not, by the end, do what its self-understanding promised it could do.
Constitutional law scholarship that treats humans as socially constituted, tribal, traditioned, and formed by inheritance rather than by choice, and that treats the rights vocabulary as one tradition’s local achievement rather than as a universal discovery, runs against the dominant liberal-rationalist current. The work exists. Some of it sits at the margin of the field. Some of it has moved closer to the center over the past decade.
I. The Common-Good and Classical-Legal Tradition
Adrian Vermeule at Harvard Law is the most prominent academic operating in this register. Common Good Constitutionalism by Adrian Vermeule argues that the American legal tradition is properly read as a branch of the classical natural-law tradition oriented toward substantive human goods rather than as a procedural framework for atomistic rights-bearers. Vermeule treats humans as constituted by tradition, faith, and political community. Reason for him is traditioned reason, not the free-floating buffered reason of liberal-rationalism. His position has drawn opposition from across the legal academy because it explicitly denies the anthropology Chemerinsky’s framework presupposes.
Conor Casey at the University of Surrey works in the same line, often co-authoring with Vermeule. The two have produced a body of work arguing that the rights-talk apparatus is a recent overlay on a longer common-good tradition that the discipline has lost. The work treats the buffered-liberal framework as a parochial development rather than as the universal grammar of constitutional law.
II. The Natural Law Tradition
John Finnis, who taught at Oxford and Notre Dame, produced Natural Law and Natural Rights by John Finnis, the most rigorous modern statement of the natural-law account of human goods. Finnis grounds law in basic human goods that humans participate in through their formation, not in choices made by buffered individuals. The book is Mearsheimer-congruent on anthropology even where the substantive conclusions diverge.
Robert P. George at Princeton works the same vein. His writings on marriage, religious liberty, and constitutional interpretation assume an anthropology of humans as teleologically oriented beings whose flourishing depends on participation in goods their communities transmit.
Hadley Arkes at Amherst and the Washington-based James Wilson Institute, Gerard Bradley at Notre Dame, and Helen Alvaré at George Mason work in the same tradition. None matches Mearsheimer in particulars. All start from an anthropology that treats humans as constituted rather than as freely choosing.
III. The Communitarian Critique
Liberalism and the Limits of Justice by Michael Sandel argued that the unencumbered self of liberal political theory is a fiction. Humans are constituted by communities, traditions, and inherited commitments. Sandel’s communitarian critique of Rawls is Mearsheimer-congruent on the anthropology, even though Sandel remains within the liberal tradition he critiques.
Rights Talk by Mary Ann Glendon argued that the American rights vocabulary is impoverishing public discourse. Glendon, then at Harvard Law, traced how rights talk crowds out the languages of responsibility, virtue, community, and the common good. The book treats the rights vocabulary as one tradition’s idiom rather than as the natural language of justice. Glendon’s A World Made New on the Universal Declaration of Human Rights treats the document as the product of a particular postwar moment of cross-tradition negotiation rather than as the discovery of pre-existing universal rights.
Stanley Hauerwas at Duke Divinity School, though not a law professor, has been cited extensively in legal literature. His communitarian theology treats humans as constituted by communities of practice. Resident Aliens by Stanley Hauerwas and William Willimon argued that Christians had been wrong to think they could speak the public language of liberal rights without losing their substantive tradition.
IV. The Religious Liberty Scholars Who Recognize Tradition
Steven D. Smith at the University of San Diego has produced the cleanest body of work showing that liberal neutrality smuggles substantive metaphysical commitments while presenting itself as the absence of commitment. The Disenchantment of Secular Discourse by Steven D. Smith argues that secular public discourse has lost the resources to address the questions it claims to answer, because the resources came from the religious traditions secular discourse excludes. Law’s Quandary by Steven D. Smith argues that legal reasoning depends on metaphysical premises legal theorists no longer believe in. Both books treat the buffered-liberal anthropology as a tradition’s local production rather than as a universal starting point.
Michael McConnell at Stanford has done historical work on the religion clauses that emphasizes the substantive religious and communal commitments that produced the Constitution. His work treats the founders not as buffered Enlightenment philosophes but as men formed by specific religious traditions whose commitments shaped what they wrote.
Phillip Munoz at Notre Dame works in the same area with similar assumptions about tradition and formation.
Philip Hamburger at Columbia has produced Separation of Church and State, Law and Judicial Duty, and Liberal Suppression by Philip Hamburger. The books treat the modern administrative state and modern liberal jurisprudence as recent impositions on an older legal tradition that assumed humans are formed in particular communities and that law operates through inherited custom rather than through universal reason.
V. The Civic Republican Strand
Frank Michelman at Harvard developed a civic republican constitutionalism in articles published in the 1980s that emphasized civic virtue, community formation, and substantive democratic deliberation rather than the rights-bearing buffered individual. His position never displaced the dominant rights-liberalism of his peers but it sits closer to Mearsheimer’s anthropology than the dominant tradition does.
Cass Sunstein in his early civic republican phase wrote essays that emphasized deliberative virtue and community formation. Sunstein moved on to behavioral law-and-economics, which gave him a different non-buffered anthropology, one that treats humans as cognitively limited and shaped by defaults and frames. The behavioral work is Mearsheimer-adjacent on the priority of socialization over reason, even if the framing is different.
Akhil Amar at Yale produces civic republican readings of the Constitution that emphasize popular constitutionalism, community formation, and tradition. America’s Constitution: A Biography by Akhil Reed Amar treats the document as the product of specific communities at specific moments rather than as an abstract distillation of universal principles. Amar remains a liberal but his interpretive method is more tradition-aware than Chemerinsky’s.
VI. The Coalition-Aware Strand
Mark Tushnet at Harvard has produced work that treats constitutional law as politics by other means. Taking the Constitution Away from the Courts by Mark Tushnet argues that the courts’ authority over constitutional meaning is one institutional arrangement among possible others. Tushnet’s critical legal studies background gave him the analytical equipment to see constitutional law as one party’s institutional infrastructure rather than as the neutral application of universal principles. He continues to operate within a liberal frame but his self-awareness about the political character of legal doctrine is closer to Mearsheimer than mainstream liberalism allows.
Duncan Kennedy at Harvard, also from the critical legal studies tradition, treats legal reasoning as the operation of coalition politics under a vocabulary of neutrality. His work over decades has been one of the field’s most sustained efforts to expose the coalition character of doctrine.
Robert Cover at Yale produced Nomos and Narrative, the 1983 Foreword to the Harvard Law Review’s Supreme Court issue, which argued that legal interpretation requires interpretive communities and that law lives in the narrative traditions of those communities. Cover treated the state’s law as one nomos among many. Cover died in 1986 at forty-two. His project did not survive him as a school. The piece is still read.
James Boyd White at Michigan has spent his career on law and literature, treating law as constitutive of community and identity rather than as a neutral procedural framework. The Legal Imagination by James Boyd White and his subsequent books work from an anthropology that takes formation seriously.
VII. The Conservative Cultural Critique
Robert Bork at Yale produced The Tempting of America and later Slouching Towards Gomorrah by Robert H. Bork. The first attacked liberal constitutional theory for importing substantive moral commitments while claiming neutrality. The second treated the postwar period as a culture-formation crisis rather than as a procedural problem. Bork’s later work explicitly took the position that constitutional law cannot be separated from the moral and cultural formation of the polity it governs.
Antonin Scalia, though a justice rather than a scholar, produced an originalism that treated constitutional meaning as fixed by the linguistic community of the founding era rather than as discoverable by buffered reason. His position implies the formation-priority thesis even where his rhetoric did not foreground it.
VIII. The Foreign Relations Strand
Eric Posner at the University of Chicago has co-authored books with Adrian Vermeule including Terror in the Balance and The Executive Unbound by Eric A. Posner and Adrian Vermeule. The books treat liberal constitutional constraints on executive power as cultural achievements that depend on specific institutional and cultural conditions, not as universal requirements of just government. The position is Mearsheimer-adjacent on the priority of formation over reason in producing the conditions under which the rule of law operates.
Jack Goldsmith at Harvard, in The Terror Presidency by Jack Goldsmith, treated the Bush administration’s legal positions on torture and executive power as the product of post-9/11 political coalitions and bureaucratic incentives more than as the application of timeless constitutional principles. Goldsmith remains a liberal lawyer but his account of how legal doctrine actually gets produced is closer to Mearsheimer than the dominant academic tradition.
IX. The Outsider Strand
Patrick Deneen at Notre Dame, though a political theorist rather than a law professor, has influenced legal thinking. Why Liberalism Failed by Patrick Deneen argued that liberalism creates the atomistic individualism it presupposes. The book treats the liberal anthropology as self-undermining: by training citizens to experience themselves as buffered individuals, liberal institutions destroy the formative communities that produce capable citizens.
Yoram Hazony in The Virtue of Nationalism by Yoram Hazony argued that the nation, not the individual or the universal, is the natural unit of human life. The book treats human beings as constituted by particular national communities rather than as bearers of abstract universal rights.
Christopher Caldwell in The Age of Entitlement: America Since the Sixties by Christopher Caldwell treats the post-1964 civil rights regime as a substantive moral and constitutional revolution that displaced the prior constitutional order. Caldwell is not a law professor but his analysis applies a substantive-anthropology reading to American constitutional history that mainstream legal scholarship has avoided.
X. Where the Congruence Is Cleanest
Of all the names above, the cleanest fits with Mearsheimer’s passage are Steven D. Smith on the impossibility of secular neutrality, Robert Cover on legal interpretation as the operation of nomic communities, Mary Ann Glendon on the impoverishment of rights talk, Adrian Vermeule on the classical legal tradition, John Finnis on the formation of human goods, and Philip Hamburger on the inheritance character of legal authority. Each treats the buffered-individualist anthropology as a particular tradition’s production rather than as the universal starting point of legal reasoning.
The field’s center of gravity has not shifted toward this work. Chemerinsky’s casebook remains dominant. The rights-liberalism tradition still controls the credentialing apparatus. The Mearsheimer-congruent scholars operate in particular institutions, journals, and networks that the mainstream treats as marginal or as openly partisan. The asymmetry the framework predicts is the asymmetry the field exhibits. The dominant tradition cannot acknowledge the rival tradition’s anthropology without dismantling its own self-understanding. The rival tradition has been making the case for the more accurate anthropology across decades. The case has begun to land outside the academy, in the populist movements and the new judicial appointments, faster than it has landed inside the academy. The lag is what the framework predicts. Institutions move slowly. The phenomenology installed by fifty years of training does not update on argument.
If Mearsheimer is right, the Federalist Society sits in an awkward position. The Society’s official line is that it takes no positions, that it exists to facilitate debate, and that its members hold a range of views united only by commitment to originalism, textualism, and the proper role of the judiciary. The official line is a buffered-liberal self-presentation. The Society’s actual operation is a coalition-building enterprise that has reshaped the American judiciary across forty-five years. If the Society accepted Mearsheimer’s anthropology openly, several things would have to change.
I. The End of the Neutrality Performance
The Society currently operates by performing neutrality. Panels feature speakers from multiple positions. Debates get staged. The Society’s leadership repeatedly insists that the organization is a forum, not an advocacy group. The performance has been institutionally productive. It has allowed the Society to recruit at law schools where overt conservative advocacy would face resistance. It has let federal judges affiliate with the organization without violating ethical rules against political activity. It has provided plausible deniability when the Society’s effective output, conservative judicial appointments and a conservative legal movement, draws criticism.
Mearsheimer’s anthropology does not permit the performance. If humans are tribally constituted and reasoning operates downstream of socialization, the Society is a tribe constructing its members through formation, not a forum for reasoners to exchange views. Accepting this would require the Society to drop the neutrality performance. It would have to acknowledge itself as what it is: a conservative coalition-building institution that produces, certifies, and places lawyers and judges who share substantive commitments the Society cultivates.
The acknowledgment would cost the Society some of its current advantages. The credibility of its panels as genuine debates would weaken. Liberal speakers might decline to participate. Law school administrators might resist its presence on campus more aggressively. Judicial members might face new ethical pressure. The acknowledgment would also bring honesty about what the organization does. The Society’s leadership has occasionally said in private what the framework would require it to say in public. The framework predicts the gap between private acknowledgment and public denial as the normal condition of an institution operating under a buffered-liberal cover while doing porous-coalition work.
II. The Originalism Problem
The Society’s stated commitment to originalist rests on the proposition that constitutional meaning is fixed by the linguistic community of the founding era and that judges should apply that meaning rather than imposing their own. The position contains a Mearsheimer-friendly element: it locates constitutional meaning in the formation of a particular community at a particular time, not in universal reason. Originalism treats the founders as men shaped by their tradition, language, and political community. The text means what their socialized intuitions made it mean.
But originalism also contains a buffered-liberal element. It assumes that contemporary judges can perform a buffered analytical operation: setting aside their own socialization, identifying the founders’ meaning, and applying it neutrally. The judge, on this account, is a buffered reasoner who reaches across time to recover meaning produced by a different formation. The framework says the judge cannot do this. The judge is constituted by his own formation. His recovery of founding meaning is shaped by his contemporary commitments, including the commitments his Federalist Society network installed in him. The originalism the Society teaches is one tribe’s contemporary interpretation of the founders, not a neutral recovery of original meaning.
If the Society accepted the framework, originalism would have to be reframed. It would no longer be the neutral application of recovered founding meaning. It would be the conservative coalition’s preferred reading of the founders, defended on grounds the coalition finds compelling, opposed by other coalitions on grounds they find compelling. The judges who apply originalism would be acknowledged as judges trained by one tradition to read the founders in one way. The originalism vocabulary would lose its claim to be the neutral method that other interpretive methods deviate from. It would be one tradition’s method, contesting against rival traditions’ methods, with each tradition’s claim to neutrality dissolved.
This is a position Justice Scalia gestured at without fully embracing. He sometimes acknowledged that originalism is not perfectly neutral and that it produces results his political coalition prefers. But he insisted that originalism was nonetheless more neutral than the alternatives because it constrained judicial discretion. The framework dissolves this defense. Originalism does not constrain judicial discretion any more than living constitutionalism does. It channels discretion through a particular interpretive tradition. The tradition the Society teaches produces results the Society’s coalition wants. The constraint is on which discretionary moves count as professional and which count as amateur. The framework calls this what it is: a coalition’s interpretive convention, not a meta-method standing above the contest.
III. The Substantive Vision Problem
The Society has historically resisted committing to substantive constitutional vision. Its members hold a range of substantive views: libertarian, social-conservative, traditionalist, originalist-textualist, common-good. The official line treats this range as a feature, not a bug. The Society unites people committed to method, not substance. The framework, applied honestly, treats this as another part of the buffered-liberal cover. Method-only commitment is what a buffered-liberal coalition tells itself when it cannot articulate the substantive commitments that actually unite it.
If the Society accepted Mearsheimer’s anthropology, it would have to acknowledge the substantive commitments. Most members of the Federalist Society at the senior level are united by certain substantive views: they support traditional family structure, religious liberty for traditional religious communities, restrictions on abortion, limits on the administrative state, federalism against national majoritarian impositions, and the protection of inherited communities against the leveling tendencies of progressive policy. These are substantive commitments. They are not method commitments. The members hold them because their formation produced the commitments. The Society’s institutional life reinforces them.
Acknowledging the substantive commitments would force a split. The libertarian wing of the Society is substantively at odds with the social-conservative wing on many questions. The strict-constructionist wing is at odds with the common-good wing. The unification under “method, not substance” papered over these splits. Honest acknowledgment of substantive commitment would require the Society to choose, or to recognize itself as a coalition of distinct sub-tribes whose alliance is tactical rather than principled. Vermeule’s common-good constitutionalism has already pressed this point. The libertarian-originalist mainstream of the Society has resisted. The framework predicts that the resistance is itself coalition maintenance under cover of methodological dispute. The contest between common-good and libertarian wings is a contest between two visions for what the conservative legal coalition should be. It is not a methodological disagreement.
IV. The Cultivation Acknowledged
The Society spends substantial resources on what it calls “viewpoint diversity” at law schools. Student chapters host events. The Society subsidizes travel for student leaders to attend national conferences. It runs summer programs for law students. It places clerks with conservative judges. It funds scholarship that the mainstream academy might not otherwise support. It runs the Olin and Searle programs that have produced a network of conservative legal academics. Its alumni populate the Justice Department, the federal judiciary, and conservative think tanks.
The framework names this what it is: tribal formation. The Society is producing a coalition by socializing law students into a particular tradition during the formative period of their professional lives. The students who absorb the formation experience their resulting positions as the conclusions of careful study. The framework says the conclusions are downstream of the formation. The Society installs the tradition; the graduates carry it; the carrying gets experienced as reasoning.
If the Society accepted this honestly, it would have to acknowledge that its educational work is formation rather than debate-facilitation. The Olin programs are not neutral fellowships. They are tribal-formation programs that produce a particular kind of legal academic. The student chapter events are not neutral debates. They are formation experiences that recruit students into a tradition. The summer programs are not neutral skill-building. They are immersions in a coalition’s vocabulary and network. The acknowledgment would not require the Society to stop doing any of this. It would require the Society to stop pretending it is doing something else.
The benefit of the acknowledgment is honesty. The cost is the loss of the buffered-liberal cover that has let the Society operate inside institutions whose official rules disfavor open coalition formation. Universities, which present themselves as neutral forums for reasoning, have been able to host the Society because the Society also presents itself as a neutral forum. If the Society dropped the cover, universities would face harder questions about whether to host it. The framework predicts that universities themselves operate under similar covers. The honest acknowledgment by the Society could in principle force parallel honesty from the universities. The universities would resist. The framework predicts the resistance.
V. The Rights-Talk Problem
The Society’s mainstream position has long invoked the rights vocabulary. Religious liberty rights. Property rights. Speech rights. Second Amendment rights. The vocabulary has been the conservative legal movement’s principal tool for opposing what it views as progressive overreach. The vocabulary depends on the universalist anthropology Mearsheimer rejects.
If the Society accepted the framework, the rights talk would have to be reframed. Rights would be acknowledged as one tradition’s vocabulary for protecting commitments that tradition holds dear. They would not be inalienable in the sense of belonging to humans as humans. They would be the conservative coalition’s preferred way of articulating the protections it wants for its way of life. Other coalitions would use other vocabularies for the protections they want for their ways of life.
This is a hard pill for the Society to swallow because the rights vocabulary has been its bridge to liberal legal traditions. The Society has been able to invoke the First Amendment, the Fourteenth Amendment, and the Bill of Rights generally as universal protections, while pursuing substantive outcomes its coalition wants. Liberal legal opponents have invoked the same vocabulary for their substantive outcomes. The shared vocabulary has let both sides pretend the contest is about who reads the universal protections correctly. The framework dissolves the pretense. Both sides are using the rights vocabulary to advance substantive coalition commitments. The contest is over which coalition gets to operate the vocabulary in particular cases.
The common-good wing of the Society has already begun to make this move. Vermeule and others have argued openly that conservative legal thought should be reorganized around substantive vision rather than around procedural rights protection. The libertarian-originalist mainstream has resisted. The framework predicts that the resistance is also coalition maintenance. The libertarian wing benefits from the rights vocabulary because the vocabulary is the bridge that lets libertarian legal thought operate inside the liberal-rationalist legal academy. Drop the bridge and the libertarian wing has to choose between the academy and the substantive vision.
VI. The Judicial Selection Operation
The Society has been the most effective judicial selection apparatus in modern American history. From Reagan’s nominations onward, the Society has supplied the names, vetted the candidates, and organized the political support for confirmations. The Trump administration’s first-term judicial appointments ran through the Society’s pipeline almost without exception. The pipeline operates by identifying candidates who share the Society’s formation, vetting them for reliability, and presenting them to administrations that trust the vetting.
The framework names this what it is: a coalition’s mechanism for placing its formed members in lifetime positions where they will produce decisions the coalition wants. The buffered-liberal cover treats this as neutral judicial selection based on qualifications and judicial philosophy. The framework treats it as the most consequential coalition-building operation in modern American legal life. The acknowledgment would not require the Society to stop the operation. It would require the Society to stop pretending the operation is something else.
The cost of dropping the pretense would fall on confirmation politics. Senators currently confirm Federalist Society judges by accepting at face value the candidates’ professions of judicial neutrality. If the Society openly acknowledged that its judges are products of coalition formation who will reach decisions consistent with the coalition’s substantive commitments, confirmation politics would shift. Democratic senators would have a harder time confirming Federalist Society judges. Republican senators would have an easier time openly defending the substantive results. The current ambiguity benefits the Society at the level of confirmation. Honest acknowledgment would force the politics into more open form.
The framework predicts that the open form is the more accurate form. The current ambiguity is sustainable only as long as the buffered-liberal cover holds. The cover has been weakening for years as confirmation hearings have grown more openly partisan. The framework predicts continued weakening. At some point the cover will become unsustainable. The Society will have to choose between maintaining the pretense as it loses credibility and openly acknowledging what the operation has been.
VII. The Academic Position
The Society’s academic wing has long sought legitimacy inside the elite legal academy. The Olin programs at Harvard, Yale, Stanford, and Chicago were partly designed to give conservative legal academics a foothold inside institutions whose mainstream culture excluded them. The programs have produced senior conservative academics now in tenured positions. The strategy worked at the level of placement. It has not worked at the level of cultural integration. The mainstream academy treats the Society-affiliated academics as a parallel tribe rather than as colleagues. The cultural exclusion has continued even as the formal placement has succeeded.
The framework explains the asymmetry. The mainstream legal academy operates under buffered-liberal anthropology and cannot recognize the Society-affiliated academics as fellow buffered reasoners because their formation is different. The mainstream reads the Society academics as products of a rival coalition. The reading is correct, but it is not the reading the mainstream’s official self-understanding allows it to acknowledge. The mainstream therefore treats the Society academics as not-quite-real-academics while pretending to admit them as full colleagues. The pretense is institutionally productive: it allows hiring, tenure, and citation to proceed while preserving the exclusion at the level of cultural authority.
If the Society accepted Mearsheimer’s anthropology, its academic wing would have to acknowledge its outsider position openly rather than continuing to seek inclusion in a tradition that will not fully include it. The acknowledgment would shift strategy. Instead of pursuing legitimacy inside the elite academy, the Society’s academic wing might invest more heavily in building its own institutional infrastructure: dedicated journals, dedicated centers, dedicated PhD programs in legal theory, dedicated career pathways for conservative academics that do not require constant performance for the mainstream’s approval. Some of this is already happening. Hillsdale, Catholic University, Pepperdine, the University of Dallas, and other institutions have built or expanded conservative-friendly academic programs. The framework predicts that this strategy will be more productive than continued investment in a mainstream that will not accept the Society’s academics as full colleagues regardless of their credentials.
VIII. The Internal Faultlines
Acknowledging Mearsheimer’s anthropology would not unify the Society. It might split it. The libertarian-originalist mainstream and the common-good or post-liberal wing already have substantive disagreements that the buffered-method cover has obscured. The libertarian wing wants minimal government, free markets, individual liberty, and constitutional restrictions on regulatory power. The common-good wing wants government oriented toward substantive human flourishing, restrictions on cultural decay, support for traditional family and religious life, and judicial reasoning oriented toward substantive justice rather than toward procedural neutrality.
These wings can coexist under the buffered-method cover because the cover defers substantive disagreement to private deliberation. If the cover comes off, the disagreement becomes operational. The Society would have to decide which wing’s vision predominates. Different decisions would produce different judicial appointments, different academic priorities, different scholarship, and different political alliances. The libertarian wing would push the Society toward continued alliance with corporate-libertarian funders and continued focus on regulatory and economic cases. The common-good wing would push toward substantive cultural commitments that the libertarian funders find uncomfortable.
The framework predicts that the contest is already under way and that it has been temporarily suppressed by the institutional advantages of the buffered cover. Vermeule, Hadley Arkes, Patrick Deneen, and others associated with the post-liberal turn are arguing for the second vision. Federalist Society leadership has tended to maintain the libertarian-originalist mainstream while accommodating the common-good wing without giving it dominance. The accommodation works as long as the cover holds. If the cover fails, the contest must be resolved.
IX. The Strategic Position Going Forward
Accepting the framework would let the Society see its strategic situation more clearly. The conservative legal coalition has won significant victories at the Supreme Court level: Dobbs, Bruen, SFFA v. Harvard, the major-questions cases, the religious-liberty cases. The victories have not produced commensurate cultural change because the broader institutional infrastructure of American life remains shaped by the rival coalition. Universities, foundations, professional associations, large law firms, federal agencies, and the elite legal academy continue to operate under buffered-liberal anthropology and to produce graduates, decisions, and policies that resist the substantive vision the conservative legal movement has been pursuing.
The framework predicts that judicial victories alone cannot produce the cultural change the conservative coalition wants, because culture is produced by formation, not by judicial decision. The decisions matter. They constrain certain outcomes. They do not produce the people whose substantive commitments would sustain a different culture. Producing those people requires institutional infrastructure dedicated to formation: schools, universities, religious institutions, media, professional networks, civic organizations.
If the Society accepted this, its strategic priorities would shift. Judicial selection would remain important. It would no longer be the dominant priority. The Society’s resources would shift toward formation: educational institutions at every level, family policy, religious institutional support, professional networks outside the conservative-libertarian-corporate alliance, media, civic life. The libertarian wing would resist this shift because the wing’s interests are economic and procedural rather than formative. The common-good wing would push for the shift. The contest within the Society would intensify.
The framework predicts that the Society as currently constituted cannot make the shift wholesale because its donor base, its institutional alliances, and its self-understanding all run through the libertarian-originalist mainstream. Partial shifts are possible. New institutions adjacent to the Society can take up the formation work the Society itself cannot fully embrace. The American Compass project, the Edmund Burke Foundation’s National Conservatism conferences, the new universities like the University of Austin, and the religious institutional networks operate in this adjacent space. The framework predicts that the most consequential conservative legal work over the next twenty years might happen in these adjacent institutions rather than in the Federalist Society proper, because the Society remains constrained by its buffered-method cover while the adjacent institutions are free to operate from substantive commitment.
X. The Honest Position
If the Society accepted Mearsheimer’s anthropology, the institution would acknowledge itself as a conservative coalition’s institutional infrastructure for forming, certifying, and placing legal professionals whose substantive commitments the coalition cultivates. It would acknowledge that its members reach the conclusions the formation prepared them to reach. It would acknowledge that the rights vocabulary it has used is one tradition’s idiom for substantive commitments other traditions articulate differently. It would acknowledge that originalism is the conservative coalition’s interpretive convention, not a meta-method standing above the contest. It would acknowledge that judicial selection through its pipeline produces judges who decide cases consistent with the coalition’s substantive vision. It would acknowledge that the buffered-method cover has been institutionally productive but is not the truth about what the Society does.
The acknowledgment would cost the Society some of its current advantages. It would also free the Society to do work the cover has constrained. It could openly invest in formation. It could openly defend substantive vision. It could openly contest with rival coalitions on substantive grounds. It could acknowledge its judges as members of a tradition rather than as buffered reasoners. It could pursue a longer-horizon strategy oriented toward producing the kind of culture the substantive vision would require.
The framework predicts that the Society as a whole will not make the acknowledgment. The libertarian-originalist mainstream’s interests run against it. The acknowledgment requires accepting an anthropology the mainstream’s intellectual formation rejects. The mainstream’s leaders are formed by the same buffered-liberal apparatus that formed Chemerinsky, even where their substantive conclusions differ from his. They do not see themselves as a tribe doing tribal work. They see themselves as buffered reasoners who happen to reach conservative conclusions. The framework predicts they cannot see otherwise without dismantling their self-understanding.
The acknowledgment is more likely to come from the post-liberal wing operating in adjacent institutions, where the buffered cover never fully held and where substantive commitment is openly articulated. The Federalist Society as currently constituted will continue to operate under the cover until either external pressure or internal succession forces a shift. The framework predicts that the pressure will accumulate but not reach decisive force in the immediate future. The Society’s institutional position is too valuable to its members for the acknowledgment to come voluntarily. The acknowledgment will come when the cover stops working or when a generation of leaders rises whose formation is closer to the post-liberal wing than to the libertarian-originalist mainstream. Both processes are under way. Neither has completed.
The honest position is therefore available in principle. It is not available in practice for the institution as a whole. Individual members might accept it. The institution will not. The framework explains why. The buffered cover is what made the institution what it is. Accepting Mearsheimer’s anthropology would dissolve the cover. The institution will not dissolve its own cover voluntarily. It will operate under the cover until the cover stops working. When the cover stops working, the institution will either reorganize or fade. The framework does not predict which. It predicts only that the current arrangement cannot last indefinitely once the buffered-liberal apparatus that produced it loses its broader cultural authority. The losing is happening. The pace is uncertain. The direction is not.
Constitutional Law Theory Congruent with Stephen Turner
Turner’s full toolkit cuts hard. Tacit knowledge that cannot be transmitted as rules. Anti-essentialism about practices, traditions, and shared norms. Convenient beliefs as the operating layer of professional life. Skepticism about expertise as a basis for democratic legitimacy. Sustained attention to how Weber’s charismatic authority, legal-rational authority, and bureaucratic rule actually function. Critical engagement with Kelsen’s pure theory of law as a closure strategy. The democracy-3.0 argument that liberal democracy is structurally vulnerable to expert capture. The making-democratic-theory-democratic project that exposes how democratic theory itself functions as the convenient belief of the professional class that produces it. Constitutional law scholarship that runs on these premises is rare. Most of the field operates under exactly the assumptions Turner attacks. The work that does run on Turner-compatible premises sits at the field’s edges or in adjacent disciplines.
I. The Direct Application Strand
Mark Tushnet at Harvard is the closest thing the field has to a sustained Turner-congruent voice. His Critical Legal Studies background gave him the equipment to treat legal doctrine as the operation of professional coalitions under a vocabulary of neutrality. Taking the Constitution Away from the Courts by Mark Tushnet argued that the courts’ authority over constitutional meaning is one institutional arrangement among possible others, sustained by the legal profession’s interest in maintaining it rather than by anything intrinsic to constitutional governance. Tushnet’s Red, White, and Blue and The New Constitutional Order read constitutional change as the working-out of political coalition shifts rather than as the recovery of stable constitutional meaning. His approach is Turner-compatible on multiple fronts: it treats legal doctrine as professionally produced rather than discovered, treats legal expertise as a closure strategy, and treats the academy’s official self-understanding as convenient belief. He remains a liberal in his substantive politics. The method is not.
Duncan Kennedy at Harvard worked the same vein for longer. A Critique of Adjudication by Duncan Kennedy treats legal reasoning as the operation of trained judicial dispositions that the legal academy installs in its students. Kennedy’s earlier Legal Education and the Reproduction of Hierarchy exposed law school as a formation institution that installs hierarchical professional dispositions while presenting itself as neutral training. The pamphlet predates Turner’s most direct statements but operates from compatible premises about the tacit installation of professional habit through institutional training.
Robert Cover at Yale produced Nomos and Narrative in the 1983 Harvard Law Review Foreword, which treated legal interpretation as the operation of nomic communities whose tacit traditions cannot be reduced to explicit rules. Cover’s framework treats the state’s law as one nomos among many, sustained by professional formation rather than by neutral reason. The piece is Turner-congruent on tacit knowledge, anti-essentialism about legal tradition, and the political character of professional certification. Cover died in 1986 at forty-two. The school he might have founded did not survive him.
Pierre Schlag at Colorado Law has produced sustained work treating American legal thought as a series of professional dispositions that the field cannot examine because the examination requires the dispositions. Laying Down the Law by Pierre Schlag and his subsequent books push hard on the Turner-compatible point that legal expertise is a particular formation that produces particular outputs while presenting itself as the application of universal reason. Schlag is the closest American legal academic to Turner in tone and method. His work is read by a small audience inside the field.
II. The Critical Tradition Generally
The Critical Legal Studies movement produced a body of work that reaches Turner’s positions through a different route. Roberto Unger at Harvard, in Knowledge and Politics and Law in Modern Society, treated the modern liberal-legal tradition as a particular cultural achievement rather than as a universal discovery. Unger’s later work moved in idiosyncratic directions but the early books are Turner-compatible on anti-essentialism about legal tradition and the convenient-belief character of liberal-rationalist legal theory.
Karl Klare, Peter Gabel, Mark Kelman, Clare Dalton, and the broader CLS network produced work in the 1980s and early 1990s that treated legal doctrine as the operation of professional coalitions producing outcomes consistent with their institutional positions. The CLS movement faded as an organized force inside elite legal academia by the late 1990s, partly through generational succession and partly through institutional resistance. Its analytical equipment remains available. The field largely declined to use it.
Critical race theory and feminist legal theory produced their own versions of the convenient-beliefs critique applied to liberal-rationalist legal doctrine. Derrick Bell, Patricia Williams, Kimberlé Crenshaw, and Catharine MacKinnon argued that legal doctrine’s claims to neutrality functioned to maintain the position of the coalitions that produced it. The critique is Turner-compatible on the convenient-beliefs analysis, though the substantive politics points in different directions from Turner’s. The frameworks share the analytical move of exposing legal expertise as one tribe’s apparatus dressed in the vocabulary of universal reason.
III. The Weber-Kelsen-Schmitt Strand
Turner has written extensively on Weber’s account of authority and on Kelsen’s pure theory of law as a closure strategy. American constitutional law scholarship that engages this tradition seriously is rare. Most American legal theory works through the analytical-positivist tradition derived from Hart and Raz or through the natural-law tradition derived from Aquinas and Finnis. Engagement with the German legal-theoretical tradition that Turner takes seriously runs mostly through political theorists and intellectual historians.
David Dyzenhaus at the University of Toronto has produced sustained work on legal positivism and the rule of law. Hard Cases in Wicked Legal Systems and The Constitution of Law: Legality in a Time of Emergency by David Dyzenhaus engage Kelsen, Schmitt, and the Weimar legal-theoretical debates that Turner takes as foundational. Dyzenhaus is Turner-compatible on the recognition that legal-rational authority depends on cultural and political conditions that the doctrine itself cannot supply.
William Scheuerman at Indiana University has written on Schmitt, Neumann, and the Frankfurt School’s engagement with legal theory. His work treats the rule of law as a cultural achievement vulnerable to the institutional pressures Weber, Schmitt, and Neumann identified.
Jens Meierhenrich at the London School of Economics has produced work on the rule of law and on Schmitt’s jurisprudence that engages the German tradition with the seriousness Turner brings to it. The Remnants of the Rechtsstaat by Jens Meierhenrich treats the rule of law as a concrete institutional achievement that can be eroded by professional and political processes the doctrine cannot prevent.
Bernard Harcourt at Columbia has done work treating American legal practices as expressions of governmental rationalities that produce the subjects they claim merely to govern. The Illusion of Free Markets and Critique and Praxis by Bernard E. Harcourt are Foucauldian in approach but reach Turner-compatible positions on the tacit production of professional dispositions and the convenient-beliefs character of liberal-rationalist policy.
IV. The Expertise-and-Democracy Strand
Turner’s Liberal Democracy 3.0 argued that liberal democracy faces a structural tension between its claim to popular legitimacy and the technical complexity that requires expert governance. Constitutional law scholarship that engages this tension seriously is again rare, because most constitutional theory presupposes the resolution Turner says is unavailable.
Adrian Vermeule’s work, before and during his common-good turn, engaged the expertise-democracy problem with Turner-compatible analytical equipment. Law and the Limits of Reason by Adrian Vermeule argued that judicial reasoning’s pretensions to systematic correctness are unsustainable and that legal-institutional design should reflect the actual cognitive limits of judges and lawyers. The Executive Unbound by Eric A. Posner and Adrian Vermeule argued that liberal-legal constraints on executive power depend on cultural and political conditions that the doctrine itself cannot guarantee. Both books reach Turner-compatible conclusions about the gap between legal-doctrinal claims and the institutional realities the doctrine operates within. Vermeule’s later turn to common-good constitutionalism extends the argument by abandoning the buffered-liberal cover entirely.
Cass Sunstein at Harvard works the expertise-democracy problem from a different angle. The Cost-Benefit Revolution and earlier work on regulatory policy treat expert agencies as the operative governance mechanism while constitutional doctrine provides legitimating cover. Sunstein remains within the liberal-legal tradition but his analytical attention to how regulation actually works is Turner-compatible on the priority of bureaucratic operation over doctrinal claim.
Frank Cross at the University of Texas has produced empirical work showing that judicial outcomes track the political coalitions that produced the judges rather than tracking the doctrinal categories the judges invoke. Decision Making in the U.S. Courts of Appeals by Frank B. Cross is Turner-compatible on the coalition-character of professional decision-making.
Lee Epstein at Washington University and Jeffrey Segal at Stony Brook have produced the attitudinal model of judicial behavior, which treats Supreme Court decisions as the working-out of justices’ policy preferences rather than as the application of legal doctrine. The model is Turner-compatible on the convenient-beliefs character of the Court’s official self-presentation. Segal and Spaeth’s The Supreme Court and the Attitudinal Model Revisited is the standard statement.
V. The Popular-Constitutionalism Strand
Larry Kramer at Stanford produced The People Themselves: Popular Constitutionalism and Judicial Review by Larry D. Kramer, which argued that the long American tradition treated constitutional meaning as the property of the political community rather than as a specialized expertise belonging to judges. Kramer’s framework is Turner-compatible on the anti-essentialism about legal tradition and on the closure-strategy character of professional constitutional interpretation. The book argued that judicial supremacy is a recent professional achievement rather than an inherent feature of American constitutionalism.
Mark Tushnet’s Taking the Constitution Away from the Courts runs in the same line. So does Sanford Levinson’s Our Undemocratic Constitution: Where the Constitution Goes Wrong, which treats constitutional doctrine as one professional tradition’s interpretation rather than as the discovery of the document’s meaning. Levinson’s work is Turner-compatible on anti-essentialism but remains liberal in its political conclusions.
Akhil Amar at Yale has produced popular-constitutionalist work that treats the document as the product of specific communities at specific moments. America’s Constitution: A Biography and The Words That Made Us by Akhil Reed Amar treat constitutional interpretation as the recovery of historically specific community decisions rather than as the application of universal reason. Amar remains liberal but his interpretive method is more tradition-aware than the dominant liberal mainstream.
VI. The Tacit-Knowledge Strand
The most direct engagement with tacit knowledge in legal scholarship comes through work on judicial craft and on the formation of legal professionals. Anthony Kronman at Yale produced The Lost Lawyer by Anthony T. Kronman, which argued that the legal profession had lost the practical wisdom that earlier generations of lawyers possessed. Kronman’s account of the lost wisdom is Polanyi-compatible on the tacit character of professional judgment. The book is one of the few in elite legal scholarship that engages tacit knowledge as a constitutive feature of legal practice rather than as a side note.
James Boyd White at Michigan worked the law-and-literature tradition with sustained attention to how legal language shapes legal community. The Legal Imagination and Justice as Translation by James Boyd White treat legal practice as the formation of communities of interpretation. The work is Turner-compatible on the tacit character of legal community formation and on the anti-essentialism about legal tradition. White’s school of law-and-literature has not become dominant inside the field. Its analytical equipment is available.
Richard Posner at the University of Chicago, in his pragmatist phase, produced work on judicial reasoning that engaged the tacit and intuitive dimensions of decision-making. How Judges Think by Richard A. Posner treats judicial decision-making as a complex psychological process that cannot be reduced to doctrinal application. Posner’s framework is Turner-compatible on the tacit character of professional judgment, though Posner’s substantive politics ran in different directions across his career.
VII. The Anti-Essentialism Strand
Anti-essentialism about legal tradition, doctrine, and category is most fully developed inside the critical traditions but appears intermittently in mainstream scholarship. Owen Fiss at Yale produced anti-essentialist work on equal protection in Groups and the Equal Protection Clause and other articles. Fiss’s argument that equal protection cannot be reduced to anti-classification doctrine is Turner-compatible on the anti-essentialist point that doctrinal categories are professional reconstructions rather than discoveries of stable meaning.
Jed Rubenfeld at Yale, in Revolution by Judiciary and Freedom and Time, treated constitutional interpretation as the operation of generational projects rather than the recovery of stable text. Rubenfeld’s framework is anti-essentialist about constitutional meaning while remaining within the liberal tradition.
Jack Balkin at Yale, in Living Originalism, attempts to reconcile originalism with anti-essentialism about constitutional meaning. The attempt sits awkwardly between the two positions. Balkin treats constitutional interpretation as the working-out of social movement claims through framework structures established at the founding. The framework is Turner-adjacent on the recognition that constitutional meaning is constructed through political processes rather than discovered, but it retains a residual essentialism about the framework structures themselves.
VIII. The Bureaucracy-and-Administrative-State Strand
Turner’s attention to bureaucracy as the operative governance form has analogs in legal scholarship on the administrative state. Gillian Metzger at Columbia, Adrian Vermeule at Harvard, Cass Sunstein at Harvard, and Adrian Vermeule and Cass Sunstein together have produced work treating the administrative state as the operative governance apparatus that constitutional doctrine legitimates without controlling. The Executive Unbound by Eric A. Posner and Adrian Vermeule is the most Turner-compatible statement in this line.
Philip Hamburger at Columbia argues from the opposite direction in Is Administrative Law Unlawful? by Philip Hamburger and The Administrative Threat by Philip Hamburger. Hamburger treats the modern administrative state as a recent imposition on an older constitutional order. The position is Turner-compatible on the anti-essentialism about modern administrative legality and on the recognition that bureaucratic governance produces forms of authority the doctrine cannot fully constrain.
Jerry Mashaw at Yale has produced sustained work on bureaucratic justice and the operation of administrative agencies. Bureaucratic Justice by Jerry L. Mashaw is Turner-compatible on the recognition that bureaucratic decision-making operates through tacit professional norms rather than through explicit doctrinal application.
IX. The Adjacent Disciplines
Constitutional law scholarship on Turner’s premises is rare partly because the analytical work the premises support has happened in adjacent disciplines. Sociology of law, particularly the law-and-society tradition, has produced sustained Turner-compatible analysis. Marc Galanter at Wisconsin produced “Why the ‘Haves’ Come Out Ahead,” which treated litigation outcomes as the working-out of structural advantages held by repeat-player coalitions. The piece is Turner-compatible on the convenient-beliefs character of formal-legal equality.
Legal anthropology, particularly the work of Sally Falk Moore, Sally Engle Merry, and Annelise Riles, has produced work treating legal practice as the operation of culturally specific tacit norms. The work is Turner-compatible on tacit knowledge and anti-essentialism about legal tradition. Constitutional law scholars rarely engage this body of work.
Political-theoretical work on constitutional interpretation, by figures like Ran Hirschl, Mark Graber, and Keith Whittington, treats constitutional doctrine as the working-out of political coalition shifts rather than as the application of stable doctrine. Hirschl’s Towards Juristocracy is the most Turner-compatible statement, treating the global rise of judicial supremacy as a political-coalition strategy rather than as a legal-doctrinal development.
X. Where the Congruence Is Cleanest
Of the figures named, the cleanest fits with Turner’s full toolkit are Mark Tushnet on judicial supremacy and the political character of doctrine, Duncan Kennedy on legal education and judicial disposition, Pierre Schlag on the dispositional character of legal expertise, Robert Cover on nomic communities, Larry Kramer on popular constitutionalism, Eric Posner and Adrian Vermeule on the executive-unbound argument, David Dyzenhaus on the conditions for the rule of law, Anthony Kronman on tacit professional wisdom, James Boyd White on legal community formation, and Marc Galanter on structural advantage in legal outcomes.
The list is short. It is short because the dominant tradition of American constitutional law operates under exactly the assumptions Turner attacks. The casebook tradition presupposes that legal expertise is real and transmissible. The bar exam presupposes that legal knowledge can be made explicit and tested. The law review tradition presupposes that legal arguments are evaluable on their merits independent of professional formation. The judicial-opinion tradition presupposes that legal reasoning is transparent rather than tacit. The constitutional-doctrine tradition presupposes that constitutional categories track stable underlying meanings.
Turner’s full toolkit dissolves each of these presuppositions. A scholar who fully accepts the toolkit cannot do constitutional law as the field practices it. The choice is to do something else, to do constitutional law in a register that the field treats as marginal, or to maintain the buffered cover while privately accepting the analysis. The third option is what most thoughtful legal academics do. The first two options account for most of the names above. The first option is what Cover, Kennedy, Schlag, and the CLS movement did in their most rigorous moments. The second option is what Tushnet, Kramer, the Vermeule-Posner pair, Dyzenhaus, Kronman, White, and the law-and-society tradition do.
The field’s center of gravity has not shifted toward Turner’s premises. The casebook tradition continues. The doctrinal apparatus continues. The convenient beliefs that organize the field continue. Turner’s analysis would dissolve them, and the field requires them, and so the analysis remains marginal. The work that is genuinely Turner-compatible operates in the margins or in adjacent disciplines or under cover of conventional doctrinal vocabulary. The dominant tradition will continue producing constitutional law scholarship under the buffered-liberal anthropology and the universal-reason apparatus the tradition requires until the cover stops working. The cover has been weakening. Turner-compatible analysis has been gaining footholds at the edges. The full reorientation has not happened and might never happen, because the field’s institutional reproduction depends on the cover.
Hero System
Erwin Chemerinsky’s hero system fuses four traditions: American Jewish liberalism, Warren Court constitutional faith, the law professor as public moralist, and the dean as institution-builder. Each tradition offers him a path to significance. Together they give a coherent answer to the question Becker says every culture must answer about what makes a life count.
The Jewish liberal frame comes first in his self-understanding. Chemerinsky writes and speaks about his Chicago boyhood and the lesson he took from it. The lesson is the lesson American Jewish liberals of his cohort drew. A society protects Jews when it protects everyone, when it has strong civil liberties, an independent judiciary, equal protection law with teeth. The Holocaust sits in the background. So does the civil rights coalition between Black Americans and Jewish Americans in the 1950s and 60s. The hero in this story defends the legal architecture that keeps minorities safe. The villain is the majoritarian impulse that produces pogroms, exclusion laws, internment camps. Chemerinsky absorbed this story young and made it his career.
The Warren Court frame organizes his scholarship. For legal academics of his age and politics, Brown v. Board, Gideon v. Wainwright, Miranda v. Arizona, New York Times v. Sullivan, and Reynolds v. Sims form a sacred history. The Court took rights seriously. The Court protected the unpopular. The Court constrained the police, the prosecutor, the segregationist legislature. To teach constitutional law in this tradition is to keep the flame. Chemerinsky’s casebook does this work. So do his trade books. The Conservative Assault on the Constitution, Closing the Courthouse Door, The Case Against the Supreme Court, Presumed Guilty, and Worse Than Nothing all argue that the post-Warren Court abandoned the project and that the proper response is to restore it.
The public moralist frame organizes his audience-facing work. Chemerinsky writes columns for the Los Angeles Times, the Sacramento Bee, the ABA Journal, and the Daily Journal. He goes on cable news. He testifies before Congress. He shows up at bar associations. Since Trump’s return he posts Instagram videos under the title “It’s the Law.” The hero here is the scholar who refuses the cloister, who translates legal doctrine for citizens, who tells the public what the Court did and what it means. Becker’s frame catches what this performance offers the performer. It offers significance. Each column is a small act of pedagogical heroism. The audience is the democratic public. The stakes are constitutional.
The dean frame organizes his institutional life. Chemerinsky founded UC Irvine School of Law and ran it from 2008 to 2017. He took the Berkeley Law deanship in 2017 and holds it still. The hero here is the institution-builder who creates the conditions for others to do legal work. He hires the faculty, raises the money, places the graduates, manages the donors, defends the institution against attack. This is administrative heroism. It produces something durable. Becker says the hero system that builds monuments answers death anxiety more directly than the system that produces only words.
The four frames reinforce each other. The Jewish liberal needs the Warren Court frame to anchor constitutional law in moral history. The constitutional scholar needs the public moralist frame to make scholarship count outside law schools. The public moralist needs the dean platform to amplify his voice. The dean needs the moral authority of scholarship and public commentary to recruit students and faculty.
The system also produces predictable failure modes. The Warren Court is gone. The current Court overturned Roe, narrowed the Voting Rights Act, expanded gun rights, narrowed the administrative state, and shows no inclination to return to the script. Chemerinsky’s books over the past fifteen years read as documents of grief. The hero who keeps the flame in a temple desanctified by its own priests faces a problem Becker described well. When the cosmology that gives your life meaning loses social authority, the hero’s labor starts to look like elegy.
The October 7 aftermath produced the sharpest test. In April 2024 a Berkeley law student stood up at a dinner Chemerinsky hosted for graduating students at his home and started a Palestinian protest with a microphone. His wife, Berkeley law professorCatherine Fisk, took the microphone away. Photos and video circulated. Chemerinsky wrote about it. He framed the protest as an antisemitic intrusion into his home. He also reaffirmed his commitment to free speech on campus and to the right of students to protest in proper venues.
The hero system explains the response. The Jewish liberal in him read the protest at his home as the kind of intrusion the legal architecture exists to prevent. The free speech scholar in him knew he could not call for the student to be punished for protected political speech. The dean in him had to maintain order at the law school. The public moralist in him had to explain all this to a national audience. He did the work the hero system requires. He also paid the cost the system imposes. The progressive coalition that had been his audience for forty years contains a faction that does not share his account of what happened. Some of his former allies sided with the protester.
Becker’s framework catches what the incident exposed. Chemerinsky had built a career on the assumption that the Jewish liberal frame and the progressive legal frame point the same direction. For most of his career they did. The civil rights coalition, the Warren Court legacy, and Jewish American liberalism shared enough enemies and enough goals to feel like one project. After October 7 the alignment cracked. Chemerinsky now occupies a smaller coalition than he did before.
Alliance Theory adds what Becker alone misses. Chemerinsky’s moral vocabulary, the language of constitutional rights, civil liberties, equal protection, and due process, was built to bind a coalition of Jewish American liberals, Black civil rights leaders, secular progressives, and parts of the labor movement. That coalition no longer dominates the left. The vocabulary still describes the same legal categories. It no longer organizes the same alliance. Chemerinsky speaks a language that retains technical authority and has lost coalition energy.
Turner on tacit knowledge points at something else. Chemerinsky’s practical sense of what counts as a serious legal argument, what a reasonable judge looks like, what kinds of moves stay within bounds, formed in a legal culture that has changed under him. The judges he writes for in his books are, increasingly, not the judges who sit. His tacit sense of the field gives him certainty he might not earn from the field as it now operates.
Trump’s second term has handed him a fresh hero opportunity. Chemerinsky organized seventy-eight law school deans to sign a letter against the executive orders sanctioning law firms that represented Trump’s opponents. He noted that only the deans of Georgetown, UCLA, and Cornell among the most prestigious schools joined him. His Instagram videos cast him as the calm legal explainer in a chaotic moment. The hero system gets oxygen from a clear villain. Trump provides one. The Warren Court frame, weakened by decades of conservative legal advance, regains some life when the executive branch attacks lawyers for representing clients.
The hero system holds. Chemerinsky still publishes. He still teaches. He still leads Berkeley Law. His books still sell. The casebook still dominates. The morning op-ed still runs. Campus Speech and Academic Freedom with Howard Gillman just came out from Yale Press. Becker’s question is whether the labor still feels heroic to the man performing it, or whether the gap between the cosmology and the world has grown wide enough that the labor takes on a different character. The honest answer is mixed. Some of the recent writing has the energy of the watchman who still believes the city he guards is the right city. Some has the energy of the watchman who suspects the city has moved.
‘Luminary Author’
Erwin Chemerinsky describes himself as a “luminary author” in his book Federal Jurisdiction.
Chemerinsky has the leverage at Aspen to strike any line he objects to. He has reissued the treatise through the seventh, eighth, and ninth editions with “luminary author” in the opening sentence. That is endorsement by repetition.
So the embarrassment question answers itself. If he were embarrassed, he could ask for “leading authority” or “preeminent scholar” or any of the standard phrases that flatter without naming the flattery. He did not. He kept the word that announces his own brilliance and let Aspen put it on the product page.
Two readings. The vain reading: he likes it. The jaded reading: he stopped reading the marketing copy years ago. Both land in the same place. He is the proximate author of the line that calls him a luminary.
The Berkeley Law biography sells the modest origin story. Public school in Chicago, Northwestern undergrad, Harvard Law, the long climb through DePaul and USC before the named chairs. He gives the commencement speeches about service and humility. He writes op-eds in the voice of the citizen-scholar explaining the Constitution to his fellow citizens.
Then the back of the treatise calls him a luminary, and the same word sits there through three editions.
The gap is the tell. Public humility plays well at faculty meetings, bar association dinners, and graduation. It signals that the dean does not lord his Harvard pedigree over the room. It earns him the affection that academic operators need to keep coalitions together.
Private branding plays well in the Aspen catalog. Law school adoption committees pick casebooks partly on author prestige. “Luminary” tells the committee that buying the Chemerinsky treatise is the safe choice. It moves units.
A man with one face holds one position. A man with two faces holds the room and the market. The humble version greets the students on the first day. The luminary version sits on the syllabus they paid three hundred dollars to read.
That is not unusual for a public intellectual at his level. Tribe did it. Dershowitz did it more crudely. The convention is old. The convention does not erase the contradiction. It just makes the contradiction familiar enough that most readers stop noticing.
The Berkeley Law biography allows you to download a portrait of the humble man. The Chemerinsky portrait shows him in jacket and open collar, smiling, clean background. The photo carries the same dual signal as the jacket copy. It looks unstudied. The lighting and framing are professional. The casual collar reads as approachable. The expression reads as confident. Someone planned all of it.
The face that goes with the humble biography is also the face that goes with the luminary author line. One photo serves both. Most academics keep one photo on the faculty page and let the communications office handle press requests. The download link treats the portrait as a product.
The frame is press kit. Politicians offer downloadable photos. Authors on speaking tours offer downloadable photos. Corporate executives offer downloadable photos. The assumption behind the link is that strangers want to publish his face, and the office wants to make that easy. The link removes friction between a journalist on deadline and a usable image.
The frame is also brand management. A downloadable approved portrait crowds out the unapproved ones. If a blogger or a reporter grabs the official file, they do not grab a candid from a panel where he looked tired. The office controls which face circulates. Politicians do this for the same reason. So do CEOs.
The third frame is volume. A man who gives hundreds of talks, sits for dozens of interviews, and sells casebooks to every constitutional law class in the country generates steady demand for his image. The download link is the supply side catching up to the demand side. He is a small institution, and the institution maintains a press page.
None of those frames sit easily with the citizen-scholar self presentation. The citizen-scholar does not have a press kit. The citizen-scholar has a faculty page with a photo on it. The press kit belongs to a public figure who has accepted that he is a public figure and built the infrastructure to manage the role.
The download link is the same gesture as the luminary author line. Both admit what the modest framing denies. He is a brand. The Berkeley page maintains the brand. He approves the maintenance.
The Set
Erwin Chemerinsky sits at the center of liberal constitutional law as a profession. The social set around him runs through the elite law school, the appellate bar, the opinion pages, and the network of progressive legal advocacy. These men and women teach the casebooks, argue the cases, write the columns, and sit on the boards that decide which young lawyers rise. Chemerinsky belongs to all four worlds at once, which gives him unusual reach inside the set.
His closest people are easy to name. His wife, Catherine Fisk (b. 1961), teaches labor law at the University of California, Berkeley and shares his standing. His co-author Howard Gillman runs the University of California, Irvine as chancellor, and the two have written together on campus speech, most recently Campus Speech and Academic Freedom. Jesse Choper (1935-2024), the former Berkeley dean whose chair Chemerinsky holds, stands behind him as the mentor generation. Catherine Lhamon, who ran the federal civil rights office, works near him on campus and democracy questions. The wider set includes Laurence Tribe (b. 1941) at Harvard Law School, the elder statesman of the field; Geoffrey Stone at the University of Chicago; Pamela Karlan (b. 1959) and Kathleen Sullivan (b. 1955) at Stanford University; Cass Sunstein (b. 1954) and Akhil Amar (b. 1958) on the more centrist edge. The journalists who carry the set's voice to the public matter too: Linda Greenhouse (b. 1947), Nina Totenberg (b. 1944), and Dahlia Lithwick (b. 1968). On the right sits a permanent sparring partner, Eugene Volokh (b. 1968), with whom Chemerinsky debates in a tone of warm collegiality that itself signals membership in the same guild.
What they value is the Constitution read as a moral document that bends toward inclusion. They prize doctrinal mastery, the ability to hold the whole structure of constitutional law in the head and explain it in plain words. They value productivity counted in books, articles, and oral arguments. Chemerinsky has written more than twenty books and over two hundred articles, and that output is a form of currency among them. They value access to the Supreme Court, clerkships for their students, and the standing to be called when a case reaches the federal courts. Above all they value the idea that law trained well and argued well protects the weak against power.
Their hero is the lawyer who stands between the citizen and an overreaching state. The model figures are Thurgood Marshall arguing Brown v. Board of Education, the ACLU lawyer taking the unpopular client, the scholar whose brief changes a doctrine. To live well in this set is to win a case that protects a right, to teach a generation that carries the work forward, to write the treatise that the courts cite. Chemerinsky fits the type. He argues appellate cases himself, including before the Supreme Court of the United States, and he now serves as counsel on Thakur v. Trump, a suit on behalf of researchers who lost federal grants. The hero suffers some cost for the cause and keeps working. The dinner at his home disrupted by protesters in 2024, and the recent reports that his wife's name appeared in federal antisemitism files, both feed a self-image of the principled scholar who takes the heat and holds the line.
The status games run on citation, placement, and platform. A man rises by where his articles land, how often courts and colleagues cite him, which students he sends to which judges, and how often he is asked to speak, testify, or write. Being named the most influential person in legal education, as National Jurist has done with Chemerinsky more than once, is the kind of marker the set tracks. The deanship is a status object in its own right, and Volokh's half-joking remark that he is shocked any top scholar would take a deanship shows the set knows the trade: a dean gives up some scholarly purity for institutional power. Chemerinsky took it and kept writing, which lets him hold both forms of status at the same time. His contract extension through 2029 makes him one of Berkeley's longest-serving deans and adds tenure to his standing.
Their normative claims are clear. Courts should protect civil rights, civil liberties, and the speech even of those they dislike. The Supreme Court as currently composed has, on their reading, betrayed much of that promise, a charge Chemerinsky pressed in The Case Against the Supreme Court and We the People: A Progressive-Originalist Manifesto. They hold that a strong public university serves democracy, that academic freedom must survive both campus mobs and federal pressure, and that the rule of law is now under threat from the executive branch. They believe lawyers carry a duty to defend that order.
Their essentialist claims hide under the normative ones. The set treats its own reading of the Constitution as the reading reason supports, so that a ruling against it counts as politics while a ruling for it counts as law. It treats the well-trained lawyer as the natural guardian of rights, as though legal skill carried moral authority by its nature. It treats the research university as a load the republic cannot do without. And it treats free speech as a principle it defends on all sides, even while the set quarrels inside itself over which speech on campus deserves protection and which counts as harm. Chemerinsky's long work on the First Amendment, including the protester at his own door, keeps testing whether the set holds that principle as a fixed truth about persons and rights or as a position it will trim when the speaker is on the other side.
Explaining the Normative (2010)
Stephen Turner (b. 1951) attacks a doctrine he calls normativism. The normativist holds that there is a separate order of normative facts, of rules and validities and obligations, that cannot be reduced to the brute facts of what people do and say, and that this order has to be invoked to explain meaning, law, and authority. Turner denies the order does any work. He argues in Explaining the Normative that when a thinker reaches for a normative fact to account for why a rule binds or a reading is correct, the thinker takes out an explanatory loan he never repays. The normative fact gets posited to close a gap. Then the positing gets treated as the explanation. Turner wants the gap closed by ordinary causes: habit, training, disposition, the empirical facts of a practice.
Erwin Chemerinsky (b. 1953) gives this argument a clean specimen. Constitutional law runs on normativism, and he speaks its purest dialect. He says the Constitution has a correct reading. He says the Supreme Court is wrong, that it has betrayed the document, that the rule of law stands under threat. Each claim points past the facts. The facts are the votes, the opinions, the appointments, the outcomes. He points past all of it to a standard the outcomes failed to meet. That standard is the surplus Turner hunts.
The lineage helps here, because Chemerinsky stands inside it. Hans Kelsen (1881-1973) put a basic norm at the top of the legal order to give the whole system its validity. H.L.A. Hart (1907-1992) put a rule of recognition in roughly the same place. Turner reads both moves as one. Each posits a normative fact to stop a regress. The regress is the problem Chemerinsky cannot escape. To read the Constitution you need rules of interpretation. To apply those rules you need further rules. The chain has to stop somewhere, and Chemerinsky stops it at the correct progressive reading, or at what the document's principles require, the position he sets out in We the People: A Progressive-Originalist Manifesto. Turner says the stopping point is no fact anyone found. It is a habit of the legal community held in place and reported as a fact. Ludwig Wittgenstein (1889-1951) and the puzzle of rule-following sit behind the whole problem.
Watch the structure of the claims, because it gives Turner his strongest card. A ruling Chemerinsky approves counts as law and faithful reading. A ruling he opposes counts as politics, or error, or betrayal, the charge he pressed in The Case Against the Supreme Court. The standard sits above every ruling, so no ruling can reach it. Turner treats this shape as the mark of normativism. The standard is built to survive any outcome, which means the outcomes never test it. A theory protected from the facts that way explains nothing about them.
Now strip the normative facts and see what is left, because Turner says what is left explains the whole performance. Chemerinsky feels bound because his training installed the disposition. His readers agree because most of them passed through the same schools and the same casebooks, many of which he wrote. The convergence of the guild is the convergence of shared habit. The feeling of obligation is a fact about the man and his community. The normative fact it points at adds nothing to the account of that feeling.
This reading does not touch his politics. It moves the explanation. On Turner's account Chemerinsky reads as a master of his guild's practices who experiences those practices as the demand of justice and of the Constitution. His standing comes from his command of the work, the treatises, the arguments, the students he places, not from any line to a normative realm. When he calls a decision wrong, the account translates the claim. The decision cuts against the trained dispositions of his legal community, and he reports the cut as a violation of an order that stands over the Court. The translation keeps every observable thing he does and drops the surplus.
The normativist objects that the translation loses something necessary. Wrong cannot mean only against my training, he says, or law collapses into power. Turner takes the objection as the symptom he describes. A man insists the surplus must exist while offering no account of what it does. That insistence is the loan Turner refuses to grant.
