Erwin Chemerinsky on the Supreme Court, Democracy’s Guardrails, and the Price of Unchecked Power
JUDJ-Prepared Summary from December 10, 2025 | The Constitution in Crisis: What’s at Stake for American Democracy. The views and opinions expressed in this blog are those of the speaker.
In a recent America at a Crossroads discussion, Erwin Chemerinsky—Dean of UC Berkeley School of Law and one of the country’s foremost constitutional law scholars—offered a wide-ranging and sobering assessment of how Supreme Court doctrine, presidential power, and structural features of the Constitution are reshaping American democracy. The conversation moved from immediate court cases to deeper design flaws that, taken together, threaten public confidence in democratic governance.
The Unitary Executive and Independent Agencies
One of the central issues Chemerinsky addressed was the growing embrace of the “unitary executive” theory—the idea that all executive power belongs solely to the president. This theory underlies President Trump’s efforts to remove leaders of independent federal agencies, such as the Federal Trade Commission, even when Congress has explicitly provided statutory protections and fixed terms.
Chemerinsky traced the legal history back to Humphrey’s Executor v. United States (1935), where the Supreme Court unanimously held that Congress could limit a president’s power to fire agency heads except “for cause.” That ruling preserved a degree of independence meant to ensure regulatory stability and prevent agencies from becoming purely partisan tools. Overturning it, he warned, would give the president sweeping authority to reshape government at will.
When Courts Disregard Facts
The conversation also explored a troubling trend in which the Supreme Court appears increasingly willing to override factual findings made by lower courts. Traditionally, trial courts determine facts, and appellate courts intervene only when those findings are “clearly erroneous.” Chemerinsky cited recent redistricting disputes, where extensive trial records were set aside, as a sign that judicial restraint itself may be eroding.
This shift matters because it weakens confidence that courts are neutral arbiters rather than political actors—a perception that fuels public distrust in the judicial system.
Money, Speech, and Democratic Influence
Campaign finance was another focal point. Chemerinsky revisited Buckley v. Valeo (1976), which equated spending money with political speech, and Citizens United v. FEC (2010), which allowed corporations to spend unlimited amounts in elections. He argued that these decisions have had corrosive effects, allowing a small number of wealthy individuals and entities to exercise outsized influence over the political process.
Recent cases, he suggested, may further loosen restrictions by allowing political parties to coordinate spending directly with candidates, deepening concerns about inequality in democratic participation.
Troops, Policing, and Constitutional Boundaries
Chemerinsky also discussed the use of the military and federalized National Guard units for domestic law enforcement. The Posse Comitatus Act of 1878 sharply limits such use, reflecting a long-standing American aversion to military involvement in civilian policing. Normalizing troops in U.S. cities, he warned, risks eroding civil liberties and blurring lines essential to constitutional democracy.
While lower courts have sometimes pushed back, Chemerinsky acknowledged that the Supreme Court has often deferred to presidents on national security claims—making the outcome of these disputes uncertain.
Structural Flaws and “No Democracy Lasts Forever”
Drawing from his book No Democracy Lasts Forever, Chemerinsky connected today’s crises to structural choices embedded in the Constitution itself: the Electoral College, equal Senate representation despite vast population disparities, and lifetime tenure for Supreme Court justices. These features, he argued, may have been understandable compromises in the 18th century but now amplify polarization and minority rule.
Reform, Civic Action, and Hope
Despite his concerns, Chemerinsky pointed to reforms he believes are both necessary and achievable, particularly prospective term limits for Supreme Court justices. He also emphasized the role of citizens: staying informed, supporting democracy-defending organizations, speaking out, and voting.
The conversation ended on a cautiously hopeful note. While the challenges are unprecedented in modern times, Chemerinsky reminded listeners that democratic progress has never been linear—and that the commitment of engaged citizens, especially younger generations, remains the strongest safeguard of all.
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.