Orin Kerr has this interesting question-and-answer exchange with Erwin Chemerinsky regarding Chemerinsky's new book on the Supreme Court. As Professor Kerr relates,
After reading Chemerinsky’s summary at Politico and the LA Times, I wondered if he was just criticizing the Supreme Court for not agreeing with his policy preferences. So I decided to ask Chemerinsky if that was a fair summary of his book, and if not, why not. Chemerinsky graciously agreed to answer my questions for publication here at the Volokh Conspiracy.
A sample:
Chemerinsky’s answers raised the broader question of whether his view of the Constitution was just his view of public policy dressed up in constitutional garb. So I asked him: Outside of the book, are there instances in which your view of the Constitution’s commands and your personal policy preferences diverge? And if so, what are they? He replied:
There are certainly instances in which I have a policy preference, but cannot reconcile them with the Constitution. I favor term limits for justices, but I believe it would violate the Constitution and would necessitate a constitutional amendment. I am not saying that there never is a difference between how one reads the Constitution and what one prefers from a policy perspective. But I do reject the idea that there is an objective, correct way to read the Constitution, or that one’s reading of the Constitution is divorced from one’s views about desirable policy…
The term limits answer is an easy escape. The question should be, are there any contested questions of constitutional law in which your policy preferences diverge from your constitutional conclusions?
If not, you are not really doing constitutional law; you are doing policy. (Or, as Mike Rappaport calls it, you are acting as a lawyer with your policy preferences as the client). I don't necessarily think that's a bad thing (it depends on your theory of the role of judges in a democratic society), but I wish people would be forthright about it. (Chemerinsky comes pretty close sometimes, including in this interview). Also I wish people who have that view would stop talking about constitutional interpretation, since they are obviously not interpreting anything but rather arguing policy.
Sahil Kapur has a somewhat less confrontational interview with Dean Chemerinsky here: How To Fix The Supreme Court: Lessons From A Disenchanted Legal Scholar.
Posted at 9:05 AM