Published in Litigation, Volume 51, Number 2, Winter 2025. © 2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
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Fifty Years of
Constitutional Law
ERWIN CHEMERINSKY
The author is the dean and Jesse H. Choper Distinguished Professor of Law at the UC Berkeley School of Law.
I began law school in 1975 and became a law professor five years
later. The constitutional law that I am teaching in 2024 is vastly
different than the material I was covering in 1980, and the state
of the law is far more conservative. This 50th anniversary is-
sue of L provides an occasion for looking back at how
much constitutional law has changed over the past five decades.
When I first taught constitutional law in 1980, Warren Burger
was beginning his second decade as chief justice. There seemed
then a solid conservative majority on the Supreme Court, with
only two reliable liberal justices, William Brennan and Thurgood
Marshall. Harry Blackmun and John Paul Stevens were not yet per-
ceived as liberal. Byron White, a Kennedy appointee, was often with
the conservatives, such as in his dissents in Miranda v. Arizona, 384
U.S. 436 (1966), and Roe v. Wade, 410 U.S. 113 (1973). Potter Stewart,
an Eisenhower appointee, was seen as a moderate. Lewis Powell
and especially William Rehnquist, the Nixon appointees in addition
to Burger and Blackmun, appeared conservative across the board.
This was no Warren Court. In its first decade, the Burger Court
had moved the law substantially to the right, most notably in the
area of criminal procedure. The Burger Court’s 5–4 decision in
San Antonio Board of Education v. Rodriguez, 411 U.S. 1 (1973)—
holding that there is no constitutional right to education and
that poverty is not a suspect classification—slammed the door
on further expansion of many of the themes of the Warren Court.
The five justices in the majority were the four Nixon appointees
and Potter Stewart.
But in hindsight, the Supreme Court of 1980 was so much
less conservative than that of today. Of the nine justices on the
bench at that time, only Rehnquist was as conservative as the six
Republican appointees now on the bench: John Roberts, Clarence
Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy
Coney Barrett.
Indeed, the Court has become ever more conservative over the
course of the last 45 years. The three justices added to the Court by
President Ronald Reagan—Sandra Day O’Connor, Antonin Scalia,
and Anthony Kennedy—moved the Court further to the right, as
each was more conservative than the justice that he or she re-
placed. President George H. W. Bush added Clarence Thomas, as
conservative as any justice who has been on the Court, and David
Souter. President George W. Bush selected John Roberts to replace
Rehnquist and Samuel Alito to replace O’Connor. And the three
Trump appointees—Gorsuch, Kavanaugh, and Barrett—made the
Court much more conservative. Kavanaugh is more conservative
than Kennedy, whom he replaced, and Barrett is far more conserva-
tive than her predecessor, Clinton appointee Ruth Bader Ginsburg.
Over the time I have been teaching, we have moved from the
swing vote being Powell, to O’Connor, to Kennedy, to no swing
vote at all with six conservatives.
