California’s Shifting Relationship With the Supreme Court

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

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

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

[Read more about the ruling here.]

I talked with Erwin Chemerinsky, the dean of Berkeley Law and an expert on constitutional law, about what it means.

Here’s our conversation, lightly edited and condensed:

First, can you talk broadly about the dynamic between California’s government and the courts? I’m thinking in particular about how many times California sued the Trump administration.

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

I think Attorney General Xavier Becerra filed more than 100 lawsuits against Trump administration policies. Many of them were on their way to the Supreme Court at the end of the administration, many of them didn’t get there. Some are there now.

You’ve got California challenging the Texas lawsuit, with the Trump administration on their side, trying to have the Affordable Care Act declared unconstitutional. You have Trump’s threatening to withhold money from sanctuary cities and states — that was on its way to the Supreme Court. And you could go on with a long list.

I don’t expect you’re going to see California challenging the Biden administration nearly as frequently.

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

One thing that’s less obvious, but still important: There are places where the Supreme Court can find there’s no constitutional right, but the state can find a right. Like abortion.

I think there’s a real likelihood the Supreme Court’s going to 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 is going to find a right that limits what the state can do.

I’ll give you an example: California adopted a law that said that religiously affiliated pregnancy crisis centers had to post notices saying the state would provide free and low-cost abortion and contraception to women who couldn’t afford them and that unlicensed facilities had to disclose they were unlicensed.

The Supreme Court, five to four, declared that unconstitutional, saying it compelled speech in violation of the First Amendment. There, the Supreme Court used a right to strike down a progressive state law.

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

I was going to ask what you made of that ruling specifically.

In the ruling about worship restrictions, you have to piece together opinions. But I think the shift from Justice Ruth Bader Ginsburg to Justice Amy Coney Barrett has created a court that’s been much more protective of religious institutions and less deferential to governors about Covid.

There are two things going on there. One is that conservatives and liberals just disagree about the need for aggressive government action to deal with Covid. And I think conservatives and liberals disagree about how much we should be protecting the free exercise of religion.

Are there any similar big, looming fights you’re anticipating already — like over public health regulation, immigration or labor regulation?

California courts have tried to limit the enforcement 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 that, with the liberal courts in California wanting to do more to protect the right of people to go to court, and the conservative Supreme Court saying no, we want to enforce them.

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

I think the Supreme Court is going to take up many more Second Amendment cases. Many of the more progressive gun regulations you see from cities in California and the state are going to face a much more conservative Supreme Court.

What about immigration? That was a source of a lot of the conflict between California and the Trump administration.

The key there is going to be the administration. Because what you saw is California challenging many of the very restrictive Trump administration policies.

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

Anything else Californians should be paying particular attention to?

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

We saw that with regard to marriage equality — the initial cases for gay and lesbian marriage all were in state court under state law.

What kinds of cases might that affect?

Imagine it was suing a police officer for use of excessive force. A plaintiff might say, “I’d rather do that in state court, under state law,” especially if the California Legislature adopts new laws in that regard.

And certainly anything with regard to the right to education.

California Today goes live at 6:30 a.m. Pacific time weekdays. Tell us what you want to see: CAtoday@nytimes.com. Were you forwarded this email? Sign up for California Today here and read every edition online here.

Jill Cowan grew up in Orange County, graduated from U.C. Berkeley and has reported all over the state, including the Bay Area, Bakersfield and Los Angeles — but she always wants to see more. Follow along here or on Twitter.

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