At the outset of the still-unfolding scandal over the firing of nine United States Attorneys and the politicization of the hiring process at the Department of Justice, Attorney General Alberto Gonzales was adamant that he would “never, ever” replace a United States attorney for political reasons. Deputy Attorney General Paul McNulty called the allegation of politicization at the DOJ “like a knife to my heart.” Now we know that political officials at DOJ “crossed the line” many times in an effort to place “loyal Bushies” in positions of power.
Unfortunately, a similar story appears to be unfolding at the Supreme Court. When introducing John Roberts and Samuel Alito, 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 similarly promised to be “umpires” without “any agenda” or “any preferred outcome in any particular case.”
These statements at the time seemed hard to reconcile with facts in the record. On the campaign trail, President Bush had rallied his base with promises to nominate “strict constructionists” to the Supreme Court in the mold of Antonin Scalia and Clarence Thomas. Roberts, meanwhile, 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. Alito had 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 Senate and the American people by and large believed the promises made by Bush, Roberts, and Alito and discounted the discordant facts in the record. Both judges were confirmed with bipartisan support. One Senator, before voting for the confirmation of Chief Justice Roberts, said: “Today I will vote my hopes and not my fears.”
Sadly, after nearly two terms together on the Supreme Court, it is clear that the Senate’s fears about Roberts and Alito are being realized, their hopes dashed. Last term, Roberts and Alito voted together in 88 percent of non-unanimous cases—more than any other two justices. So far this term, Roberts and Alito have voted together in 18 of the 20 cases that have divided the Court by five to four margins. Together with Justices Thomas and Scalia, Alito and Roberts have formed a solid conservative bloc of four justices in every major case, splitting the court along ideological lines.
In reaching a conservative political outcome 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, including respect for equal access to the courts, respect for the democratic process, and respect for precedent.
The Supreme Court’s brace of rulings today are thoroughly emblematic of the two justice’s disrespect for all three legal principles. In Leegin Creative Leather Products v. PSKS, Roberts and Alito voted to overturn a nearly century-old decision preventing manufacturers from setting a minimum price retailers may charge for their products.
The decision by Alito and Roberts to overturn this long-established precedent is particularly remarkable because the case involves interpretation of a statute. The Court is particularly committed to stare decisis in statutory cases because Congress can amend a statute if it thinks the Court has erred in its interpretation.This disregard for precedent may be a historic first. Breyer asserts in dissent: “I am not aware of any case in which this Court has overturned so well-established a statutory precedent.”
Chief Justice Roberts’ opinion, joined by Alito in the Louisville and Seattle race cases—Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education—so perfectly illustrates the rule-of-law concerns raised by this term’s opinion that it warrants its own discussion.
As an initial matter, the opinion vividly contradicts Roberts professed preference for crafting “narrow” opinions that achieve as much consensus as possible on the Court. There were five votes on the Court for the proposition that the Seattle and Louisville plans did not meet the Court’s strict scrutiny test for race-conscious classifications. Roberts’ opinion could have ended with this conclusion.
Instead, Roberts wrote two additional sections, joined only by Alito, Scalia, and Thomas, which fully equate race-conscious efforts to promote integration with racial segregation and root this conclusion in the Supreme Court’s landmark ruling in Brown v. Board of Education. There is, in Stevens’ words, a “cruel irony” in this use of the Brown opinion, and these deeply divisive conclusions were totally unnecessary for the resolution of the case.
As Kennedy argues quite forcefully in a separate opinion, Roberts “is too dismissive of the legitimate interests government has in ensuring all people have equal opportunity regardless of their race.” This is just one of many rule-of-law concerns highlighted by Roberts’ opinion in the Seattle and Louisville cases:
- Roberts and Alito show an alarming lack of respect for precedent. As Breyer argues persuasively in dissent, Roberts’ opinion refuses to follow a “longstanding and unbroken line of legal authority tells us that the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it.”
- Roberts and Alito fail to respect the democratic process. The plurality portions of their opinion, in particular, would overturn decisions made by elected officials in communities in communities across the country. As Breyer puts it in dissent, the “Constitution allows democratically elected school boards to make up their own minds as to how best to include people of all races in one America.”
- Roberts and Alito disregard constitutional history. Some conservatives, notably Scalia and Thomas, purport to be bound by the original understanding or the Constitution. But there is no evidence that anyone alive at the time the 14th Amendment was passed thought it would ban race-conscious efforts to promote integrated schools. Indeed, as Breyer demonstrates, historical research shows that the generation of Americans who enacted the Equal Protection Clause also used race-conscious measures to promote school integration. Roberts’ opinion ignores this constitutional history.
The opinions joined by Roberts and Alito are by no means isolated cases. Consider the following:
Respect for Precedent
Following a doctrine known as stare decisis, Latin for “let it stand,” the Supreme Court generally builds off its prior rulings rather than overruling them. Yet in several recent cases, Alito and Roberts have treated this doctrine, and the Court’s earlier rulings, with an alarming lack of respect.
Bowles v. Russell: Alito and Roberts voted to overrule two long-standing Supreme Court rulings even though no one in the case had filed a brief asking the Court to overrule these cases.
Gonzales v. Carhart: Roberts and Alito upheld a federal abortion ban that contains no exception for the health of a woman even though the law was nearly identical to the law struck down by the Court only seven years earlierin Stenberg v. Carhart. As Justice Ginsburg noted in dissent, the opinion joined by Alito and Roberts “is hardly faithful to our earlier invocations of ‘the rule of law’ and the ‘principles of stare decisis.’”
FEC v. Wisconsin Right to Life: Roberts and Alito voted to dramatically curtail restrictions on “sham issue ads,” regulated by the Bipartisan Campaign Reform Act. While Roberts and Alito purport not to overrule the Supreme Court’s 2003 ruling in McConnell v. FEC, the other seven justices all agreed that their opinion “effectively overrules McConnell without saying so.” In Justice Scalia’s words: “[t]his faux judicial restraint is judicial obfuscation.”
National Association of Home Builders v. Defenders of Wildlife: Roberts and Alito ruled that Section 7 of the Endangered Species Act, which requires that all federal agencies “shall” insure that their actions do not jeopardize endangered species, does not apply to nondiscretionary federal actions. This ruling contradicts the Court’s earlier ruling in TVA v. Hill, which explained that Section 7 “admits of no exception.” As Justice Stevens notes in dissent, this ruling “turns its back on our decision in Hill and places a great number of endangered species in jeopardy.”
Hein v. Freedom from Religion: Roberts and Alito threw out a lawsuit challenging President Bush’s Faith-Based Initiative, ruling that taxpayers had no “standing” to challenge the program, notwithstanding the Court’s 1968 ruling in Flast v. Cohen that found taxpayer standing in a very similar context. Justice Souter, in dissent, asserts that “a search of [the Alito/Roberts plurality] opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it.” Justice Scalia is even more scathing, stating in a concurrence that “laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive.”
Respect for the Democratic Process
Absent clear constitutional mandates, unelected judges should generally defer to the decisions on complex policy questions made by Congress—the branch of our federal government most representative of the will of the people. In many cases over the last two terms, Roberts and Alito have voted in ways that show a disturbing lack of deference, if not out right hostility, to the laws passed by Congress.
FEC v. Wisconsin Right to Life: Roberts and Alito effectively overturned the reasoned judgment of a bipartisan majority in Congress that “sham issue ads” were corrupting the nations’ political process.
Ledbetter v. Goodyear: Alito and Roberts ignored both the broad remedial mandate of Title VII of the Civil Rights Act of 1964 and the intent of Congress in the Civil Rights Act of 1991 in ruling that a victim of workplace discrimination could not sue her employer even when intentional past discrimination continued to result in current disparities in pay.
Rapanos v. U.S.: Alito and Roberts joined a plurality ruling that sought to dramatically limit the reach of the Clean Water Act, leaving vast amounts of the waters and wetlands currently protected by the Act unprotected. Justice Kennedy described the opinion joined by Alito and Roberts as “unduly dismissive of the interests asserted by the United States in these cases.” Justice Stevens was blunter, stating that the opinion joined by Roberts and Alito displayed “antagonism to environmentalism.”
Massachusetts v. EPA: Roberts and Alito voted in dissent to deny the EPA authority under the Clean Air Act to address global warming pollution—even though the Act itself called carbon dioxide a pollutant. Justice Stevens, writing for the Court’s majority, explained that this interpretation was flatly inconsistent with the text of the Act.
Arlington Cent. Sch. Dist. v. Murphy: Roberts and Alito voted that parents who successfully challenge their local school board for violating the mandates of the Individuals with Disabilities Education Act should not recover the costs of retaining the expert witnesses necessary to prevail in such suits—even though Congress clearly intended that such costs be recoverable.
National Association of Homebuilders v. Defenders of Wildlife: Alito and Roberts refused to follow the clear mandate from Congress that every federal agency should consider the impact of each of its actions on the continued survival of endangered species.
Respect for Equal Access to Courts
Roberts told the Senate that he would be an umpire, just calling balls and strikes. But Alito and Roberts have frequently ruled in ways that have shut the courthouse doors, effectively preventing a game from even beginning. Most disturbingly, court-access rulings by Roberts and Alito seem designed mainly to exclude particular types of litigants, such as victims of discrimination and criminal defendants, who have long been disfavored by political conservatives. These rulings disrespect the edict of the great Chief Justice Marshall in Marbury v. Madison, which holds: “[t]he very essence of civil liberty certainly consists in the right of everyindividual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”
Bowles vs. Russell: Roberts and Alito voted to deny an appeal of a district court ruling because the appeal was filed two days late—even though the untimely filing was caused by the erroneous instructions given Bowles in an order issued by a federal district judge.
Schriro v. Landrigan: Alito and Roberts refused to order a hearing on a claim of ineffective assistance of counsel in a death penalty case, finding that the petitioner waived his right to present mitigating evidence. In dissent, Justice Stevens observed that the outcome could “only be explained by [the majority’s] increasingly familiar effort to guard the floodgates of litigation.” But as Stevens pointedly notes, “doing justice does not always cause the heavens to fall.”
Ledbetter v. Goodyear: Alito and Roberts threw out a Title VII suit even though a jury found Ms. Ledbetter was the victim of intentional sex discrimination and that, as a result, she was receiving less money in each paycheck than men in similar positions and with similar seniority. Under the rule they imposed, a victim of discrimination is required to file a complaint even before he or she is aware that a discriminatory decision has been made—or be barred from court forever.
Hein v. Freedom for Religion: Roberts and Alito voted to close the Court’s doors on taxpayers, arguing that the President’s Faith-Based Initiative promoted religious organizations in violation of the Constitution’s Establishment Clause.
In short, the Roberts and Alito on the Supreme Court are nothing like the Roberts and Alito in testimony before Congress and in public appearances before the American people prior to their confirmation by the Senate to the nation’s highest bench. This politicization of the Supreme Court by President Bush is dangerous to the rule of law and precedent, equal rights before the law, and our nation’s democratic principles.
Read more materials:
- Talking Points: Roberts and Alito
- In Their Own Words: Roberts and Alito
- Supreme Court Decisions in Peril
- The Court’s Forgotten Promises: Desegregation Rulings Will Hit Schools Hard