Regular listeners to Hugh Hewitt's radio show are familiar with the "Smart Guys" segment, featuring Chapman Law School Dean John Eastman and University of California at Irvine School of Law Dean Erwin Chemerinsky, who comment on cases of current interest. In the August 2008 edition of the California Bar Journal, Dean Chemerinsky writes about the October 2007 term of the United States Supreme Court. He notes that in Baze v. Rees, 128 S. Ct. 1520 (2007), the Supreme Court upheld the three-drug protocol used by the State of Kentucky for lethal injection executions, against a challenge that it was cruel and unusual punishment, in violation of the 5th Amendment of the U.S. Constitution. Chemerinsky, in a effort to narrow the holding, writes:
"The decision was based on the record before the Court concerning the risks of Kentucky's method of execution. The door remains open to challenges to lethal injection based on more developed records that show a substantial or objectively intolerable risk of harm from the drugs used for lethal injection." (Italics added.)
Ah, yes, Dean Chemerinsky, we must assure that those lethal injections involve no undue risk of harm.
Of course, what Dean Chemerinsky really meant was that challenges might be asserted if the record showed a substantial or objectively intolerable risk of pain and suffering. However, isn't precision one of the essential characteristics of good legal writing? After all, this man is overseeing the legal education of impressionable young minds!
More disturbing is the liberal bias of the analysis. Of course, Dean Chemerinsky's column is labeled analysis, not news, and Chemerinsky is known for his left-wing perspective. Nonetheless, as a friend of mine is fond of saying, "You have the right to your own opinion, but not to your own facts." Dean Chemerinsky strains that license to the breaking point. Early in the article, he writes:
"Occasionally this term Justice Stevens or Justice Breyer joined with the five most conservative justices to create a 6-3 or 7-2 vote for a conservative result. But never did one of the most conservative justices--Chief Justice Roberts and Justices Scalia, Thomas and Alito--vote for a more liberal result in a case defined by ideology."
The intended implication is obvious. Liberal justices are open-minded, unlike those tunnel-visioned conservatives.
Yet, later in the same article, Chemerinksy notes that in recent criminal procedure cases, "The conservatives on the Court, such as Justice Scalia, have taken the lead in these areas in expanding the rights of criminal defendants."
Most of us would assume that expanding the rights of criminal defendants reflects a liberal result. So how does Chemerinsky justify his earlier accusation that the conservative justices "never" voted for a more liberal result?
The answer lies in the Dean's qualification, "in a case defined by ideology." Again, most of us, and quite fairly I think, would associate expanding the rights of criminal defendants, at the expense of criminal convictions, with liberal ideology. Not Dean Chemerinksy! In these cases, "ideology does not predict outcome"; and therefore hocus pocus, presto chango, now those cases are no longer examples of cases defined by ideology.
In sum, if a liberal justice joins with his conservative colleagues, that is the case of a liberal justice siding with the conservatives on a case defined by ideology. If, however, one or more conservative justices joins with the liberal justices, the case ceases to defined by ideology. As another liberal spokesperson (no doubt a follower of the same school of language theory as Dean Chemerinsky), Humpty Dumpty, said to Alice in Wonderland, "When I use a word, it means just what I choose it to mean - neither more nor less."