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.