Talking
Points: Roberts and Alito
Justices
Have Signed On to Bush Political Agenda
June
27, 2007
Bush
Supreme Court appointees John Roberts and Samuel Alito have joined with Justices
Antonin Scalia and Clarence Thomas to form a solid bloc of votes for the Bush
political agenda. At the time of their confirmation hearings President Bush
argued that Roberts and Alito deserved bipartisan support because they would
“interpret the Constitution and the laws faithfully and fairly, to protect
the constitutional rights of all Americans” and they would not “impose
their preferences or priorities on the people.” The nominees themselves
promised to be “umpires” without “any agenda.”
These
statements are hard to reconcile with the facts as the Supreme Court wraps up
its term. In fact, just as the scandals at the Department of Justice show the
politicization of the DOJ, the nation’s highest court is turning into
a political arm of the administration, too. Cases in point:
- This
year, Roberts, Alito, Scalia, and Thomas always voted together in the important
cases where the Court was ideologically divided. The positions taken by this
“gang of four” in these cases consistently were rejected not only
by Justices Stephen Breyer and Ruth Bader Ginsburg, but also by moderate Republicans
John Paul Stevens (appointed by President Ford) and David Souter (appointed
by President George H.W. Bush) and, sometimes, by President Reagan appointee
Anthony Kennedy.
- Statistics
prove that the two Bush appointees have moved the Court in line with the Bush
agenda. Prior to this year, the Court was split right down the middle in the
close ideological cases—each side won about half. But this year, the
hard-core conservatives won more than twice as many of the close cases, including
virtually all of the most important decisions.
- Roberts
and Alito have voted together in 21 of the 23 cases that have divided the
Court 5-4 this year. Alongside Thomas and Scalia, Alito, and Roberts have
formed a solid conservative bloc in every major case splitting the court along
ideological lines.
- In
reaching the outcome favored by political conservatives in these cases, Justices
Roberts and Alito have run roughshod over many of the critical rule of law
principles that limit the role politics can play in judicial decision making.
- In
the Seattle and Louisville school race cases, Roberts and Alito eschewed judicial
restraint, making divisive arguments in the plurality portion of their opinion
that were totally unnecessary for the resolution of the cases.
- In
cases such as Leegin Creative Leather Products v. PSKS, Bowles v.
Russell, FEC v. Wisconsin Right to Life, and Carhart, Roberts
and Alito have shown an alarming lack of respect for precedent, overruling,
ignoring, or effectively eviscerating previous rulings by the Court.
- In
cases such as the Seattle and Louisville school race cases, FEC v. WRTL
and Ledbetter v. Goodyear, Roberts and Alito have shown a disturbing
lack of respect for the democratic process, refusing to defer to the decisions
on difficult policy questions reached by our elected federal, state, and local
representatives.
- In
cases such as Bowles, Hein v. Freedom from Religion, and Ledbetter,
Roberts and Alito have shut the courthouse doors on victims of discrimination,
criminal defendants, and others long disfavored by political conservatives,
failing to provide equal access to justice.
- The
switch from centrist Sandra Day O’Connor to Bush appointee Alito has
dramatically altered the balance on the Court. That switch almost certainly
changed the outcome of many of this year’s most important decisions,
with the following results: making it much more difficult for women, minorities,
and older workers to challenge employment discrimination (Ledbetter);
limiting Congress’s power to keep corporate money out of federal campaigns
(Wisconsin Right to Life); cutting back on protections for reproductive
freedom (Carhart); slamming the courthouse door on people who make
technical mistakes (Bowles); cutting back on protections for people
facing capital punishment by, among other things, allowing imposition of the
death penalty on defendants deprived of even minimally adequate representation
(Landrigan, Ayers, Uttecht); and making it impossible
to challenge the Bush administration when it uses public funds to promote
favored religions (Hein).
Clearly,
the Senate confirmation process failed to elicit the two Bush appointees’
commitment to a rigid political agenda. Here’s what President Bush, Roberts,
and Alito told senators and the American public at the time of their confirmation:
- Roberts
said he had “no agenda” and pledged that he “will remember
that it’s my job to call balls and strikes and not to pitch or bat.”
He added, “Saying a judge is result-oriented . . . [is] about the worst
thing you can say, because what you’re saying is you don’t apply
the law. . . .”
- Alito
said he believed “the judiciary has to [interpret broad principles of
the Constitution] in a neutral fashion. I think judges have to be wary about
substituting their own preferences, their own policy judgments for those that
are in the Constitution.”
On the
campaign trail, President Bush rallied his base with promises to nominate “strict
constructionists” to the Supreme Court in the mold of Scalia and Thomas.
Roberts and Alito matched that description. Roberts had been part of what his
former colleague Bruce Fein called a “band of ideological brothers”
who argued for dramatic changes in the law during the Reagan administration.
And Alito submitted a 1985 job application detailing his “disagreement
with Warren Court opinions” and his desire to “help advance legal
positions [of the Reagan administration] in which I personally believe very
strongly.”
Indeed,
both Roberts and Alito spent their early careers serving the executive branch
of ideologically-driven administrations rather than gaining the kind of real
world experience brought to the Court by justices such as the one Alito replaced,
Sandra Day O’Connor.
The future
of the Supreme Court, and President Bush’s ability to project his legacy
into the next generation by molding the Court in his image, now hangs in the
balance. Consider the following facts if the president gets another chance to
name a new appointee to the Court:
- The
oldest justices are Stevens and Clinton-appointee Ginsburg. Gerald Ford said
that appointing Stevens to the Court was the best thing he did as president—and
the Court has shifted so dramatically to the right that a mainstream Ford
Republican is now seen as the Court’s liberal. Ginsburg, meanwhile,
had a reputation as a moderate while an appellate judge—recall that
President Clinton did not select judges on the basis of ideology.
- Kennedy
is generally a conservative vote, but unlike Roberts and Alito he has maintained
some degree of independence. His separate opinion in the school race cases
sets forth a far less divisive position than the plurality opinion joined
by Roberts, Alito, Scalia, and Thomas. Kennedy also voted with the more progressive
justices to form a majority in a significant global warming case. Last year,
he voted for moderation in cases limiting the Bush administration’s
extravagant claims of executive power (Hamdan); favoring voting rights;
requiring courts to hear claims by defendants who make a strong showing that
they are actually innocent; and rejecting Attorney General Alberto Gonzales’
claim that he could stop states from permitting physician-assisted suicide.
- One
more change on the Court with the departure of any of these justices would
cement Bush’s impact on public life for 20 years or more. Among the
issues at stake: a woman’s right to choose; the environment; voting
rights; congressional power; free speech and the First Amendment; and the
protection of fundamental rights and liberties.