Vanderbilt Law Review


Barry Friedman

First Page



Whatever else you want to say about Erwin Chemerinsky, he's sincere. Chemerinsky is nothing if not sincere. As anyone who knows him will tell you so. And Chemerinsky is in pain. He informs us: "This book was far harder to write than I could have imagined." The question is why Chemerinsky is in pain? You'd think this would be the easiest thing in the world for him, going after a Court he sees as overly conservative. Like shooting fish in a barrel. The reason is because deep in his heart-despite his beefs with the outcomes of cases-Chemerinsky has always been an Acolyte. He's one of your faithful. He is the faithful. If anyone is the voice of the Supreme Court, it is-ironically enough-Erwin Chemerinsky. No one-but no one-can explain better or more clearly what you folks are saying. When it comes to Supreme Court opinions, many people see him as the Oracle at Delphi. There's a reason he is in huge demand as a speaker, that his treatises on federal jurisdiction and constitutional law are crazy best sellers, and that he is one of the most cited legal scholars of all time (right up there with Cass Sunstein, Richard Epstein, and Richard Posner).

So, the risk is that if you're losing Chemerinsky, you're losing everyone else that matters. As it turns out, what we might call the "Chemerinsky phenomenon" is hardly limited to Chemerinsky himself. Indeed, it's really hard to find a time in history when so many on contending sides of the issues could come together in agreement that your institution poses a real problem. The only remotely similar time that comes to mind is when you resolved the Legal Tender Cases back in 1870-71. You decided that paper money was not legal tender, the President then filled two vacant seats on your bench, you flipped the other way, and the country-supporters of the second decision and all-volubly expressed its disapproval.

But what's happening now is different. It isn't about one decision. It's deeper. And the right is every bit as unhappy as the left.