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In Their Own Words: Roberts and Alito

Confirmation Hearing Pledges Not Kept

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Both John Roberts and Samuel Alito told members of the Senate and the American people that they would not pursue a political agenda if they were appointed to the Supreme Court. As the court winds up its second term with the two men serving on the nation’s highest bench, it’s clear that neither Roberts nor Alito has held to their commitments.

Here are both men prior to Senate confirmation in their own words.

John Roberts on…

Neutral Decision-Making

“I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Calling Balls and Strikes

“Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”

No Agenda

“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 to tell you what the result should be. You don’t go through the judicial decisional process. You don’t look to the principles that are established in the Constitution or the law… You look to what you think the results should be and then you go back and try to rationalize it. And that’s not the way the system is supposed to work.”

“I think, as a practical matter, as a pragmatic matter, judges every day know the difference between interpreting the law and making the law. Every day, judges put aside their personal views and belief and apply the law, whether the result is one they would agree with as a legislator or not agree with. The question is what the law is, not what they think it should be.”

John Roberts on…

Respect for Precedent

“Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath.”

“The principles of stare decisis look at a number of factors. Settled expectations is one of them. Whether or not particular precedents have proven to be unworkable is another consideration on the other side—whether the doctrinal bases of a decision had been eroded by subsequent developments.”

“I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn‘t answer the question; it just poses the question.”

“And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.

“I know that the responsibility of a judge confronting this issue [abortion] is to decide the case according to the rule of law consistent with the precedents; not to take sides in a dispute as a matter of policy, but to decide it according to the law.”

“Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. That was emphasized in the Casey opinion, but also in other opinions outside that area of the law.”

“[T]he principles of stare decisis are neutral and should be applied in a neutral way to cases without regard to the substance of the decisions being considered.”

Samuel Alito on…

Neutral Decisionmaking

“The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda, a judge can’t have any preferred outcome in any particular case, and a judge certainly doesn’t have a client.”

“I think 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.”

No Agenda or Preferences

“Results‑oriented jurisprudence is never justified because it is not our job to try to produce particular results. We are not policymakers and we shouldn’t be implementing any sort of policy agenda or policy preferences that we have.”

“The judge’s only obligation… is to the rule of law. And what that means is that in every single case the judge has to do what the law requires.”

“Well, if a strict constructionist is a judge who doesn’t make things up, then I‘m a strict constructionist.”

Samuel Alito on…

Respect for Precedent

“Well, I agree that in every case in which there is a prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.”

“One situation in which there is a special justification for overruling a precedent is if the rule is proven to be unworkable… Sometimes changes in the situation in the real world can call for the overruling of a precedent.”

Responding to question about Atkins v. Virginia and Roper v. Simmons, Supreme Court cases holding as unconstitutional the execution of the mentally retarded and person convicted of the underlying crime when they were juveniles: “And that is a line of precedent in the Supreme Court and those are precedents of the Supreme Court, and they’re entitled to the respect of stare decisis.”

“Well, I think that the case law [on abortion] is very clear that protecting the life and the health of a mother is a compelling interest throughout pregnancy. I think that’s very clear in the case law.”

Responding to the following question from Sen. Arlen Specter (R-PA) about a woman’s right to choose: “Well, I think the doctrine of stare decisis is a very important doctrine. It’s a fundamental part of our legal system… It’s not an exorable command, but it is a general presumption that courts are going to follow prior precedents.”

Samuel Alito on…

Respect for Congress

“The courts do not have the authority to repeal statutes or to amend statutes. And so once a court has determined what a statute means, then it’s the obligation of the courts to enforce that statute.”

“I think that the judiciary should have great respect for findings of fact that are made by Congress… And when Congress makes findings on questions that have a bearing on the constitutionality of legislation, I think they are entitled to great respect.”

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