California's Changing Relationship with the Supreme Court

Feb 17, 2021 Travel News

California’s Changing Relationship with the Supreme Court

The Biden administration’s visible support for Gov. Gavin Newsom’s vaccination campaign is just one of many ways changes at the federal level are affecting the Golden State.

But one transition that has been less discussed is how the legacy of former President Donald J. Trump shaping the Supreme Court will play out in California.

This month, we got a glimpse of the New Order when a shattered Supreme Court handed the challengers of the California pandemic restrictions their most important legal victory, blocking the state’s total ban on in-person worship in most counties.

[Read more about the ruling here.]

I spoke with Erwin Chemerinsky, the dean of Berkeley Law and an expert in constitutional law, about what this means.

Here’s our conversation, lightly edited and condensed:

First, can you talk broadly about the dynamic between the California government and the courts? I am thinking in particular of how many times has california sued the Trump administration.

Sure. Let me say the obvious: what you have is a liberal state and a conservative court. Under the Trump administration, you had a liberal state and a conservative president.

I think Attorney General Xavier Becerra has filed over 100 lawsuits against the policies of the Trump administration. Many of them were on their way to the Supreme Court at the end of the administration, many of them did not make it. Some are there now.

You have California contesting the Texas lawsuit, with the Trump administration on its side, trying to declare the Affordable Care Act unconstitutional. You have Trump’s threat to withhold money from cities and sanctuary states – which was on its way to the Supreme Court. And you could go on with a long list.

I don’t think you’ll see California defying the Biden administration nearly as often.

[Read about the Biden administration’s recent disavowal of the Trump administration’s challenge to the Affordable Care Act.]

One thing which is less obvious, but which remains important: there are places where the Supreme Court can conclude that there is no constitutional right, but the state can find a right. Like abortion.

I think there’s a good chance the Supreme Court will overturn Roe v. Wade. But California will continue to protect the right to abortion under the California constitution.

But there are still places where the Supreme Court will find a law that limits what the state can do.

I’ll give you an example: California passed a law that required religion-affiliated pregnancy crisis centers to post notices that the state would provide free, low-cost abortion and contraception to women who do not. were able to disclose that they did not have a license.

The Supreme Court, five to four, ruled this unconstitutional, saying it forced the speech in violation of the First Amendment. There, the Supreme Court used the right to overturn a progressive state law.

I think we saw it where Gavin Newsom imposed restrictions on religious worship and the Supreme Court banned some of it but allowed other parts to stay.

I was going to ask you what you did with that particular decision.

In deciding on worship restrictions, you must gather opinions. But I think the move from Judge Ruth Bader Ginsburg to Judge Amy Coney Barrett created a tribunal that is much more protective of religious institutions and less respectful of governors over Covid.

There are two things going on there. The first is that conservatives and liberals simply do not agree on the need for aggressive government action to deal with Covid. And I think the Conservatives and the Liberals disagree on the extent to which we should protect the free exercise of religion.

Are there similar and looming fights that you already foresee – like public health regulation, immigration or labor regulation?

California courts have attempted to limit the application of arbitration clauses in many contexts. But the United States Supreme Court has been very aggressive in enforcing arbitration clauses – I would expect more cases like this, with liberal courts in California wanting to do more to protect people’s rights. to go to court, and the Conservative Supreme Court said no, we want to enforce them.

[Read more about arbitration clauses and how they’ve affected corporations and workers.]

I think the Supreme Court will deal with many other Second Amendment cases. Many of the more progressive gun regulations that you see in California and state cities are going to face a much more conservative Supreme Court.

What about immigration? This has been at the root of much of the conflict between California and the Trump administration.

The key will be administration. Because what you’ve seen is that California is questioning a lot of the very restrictive policies of the Trump administration.

If we go back in four or eight years to a Trump-type administration on immigration, you’re going to see those conflicts again, but they’re going to be a lot less common with Biden.

Is there anything else Californians should pay special attention to?

One thing you’re going to see is that a lot more civil rights litigators choose to go to state court and use state law, rather than go to federal court. , given how conservative the Supreme Court is and how more liberal the California Supreme Court is. .

We’ve seen that when it comes to marriage equality – the earliest cases of gay and lesbian marriage were all in state court under state law.

What types of cases could this affect?

Imagine prosecuting a police officer for excessive use of force. A plaintiff might say, “I’d rather do this in state court, under state law,” especially if the California legislature passes new laws in this regard.

And certainly everything related to the right to education.


  • The Texas crisis sounded the alarm bells for electrical systems across the country: As climate change accelerates, power grids will face extreme weather events that go beyond the historical conditions for which these systems were designed. [The New York Times]

  • State cited Kaiser Permanente more than any other health care employer for not having adequately protected its workers. [CalMatters]

  • Los Angeles School Board voted to downsize police force and embezzle funds to improve the education of black students. [The Los Angeles Times]

  • San Francisco School Board delayed a vote confirming the district reopening plan, angry parents. [The San Francisco Chronicle]


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Jill Cowan grew up in Orange County, graduated from UC Berkeley and has reported statewide, including the Bay Area, Bakersfield and Los Angeles – but she always wants to see more. Follow us here or on Twitter.

California Today is edited by Julie Bloom, who grew up in Los Angeles and graduated from UC Berkeley.