Yesterday’s 5-4 decision by the Supreme Court in a landmark racial desegregation case, which instructed local authorities “that they cannot take modest steps to bring public school students of different races together,” marked a fitting yet disappointing conclusion to the first full term of President Bush’s two Supreme Court appointees, Chief Justice John Roberts and Justice Samuel Alito.
Noting the Court’s rapid rightward slide, Justice Stephen Breyer said in his dissenting opinion, “It is not often in the law that so few have so quickly changed so much.” For Roberts and Alito, the Court’s turn marks a radical departure from the false promises they made in their nomination hearings before Congress. Here’s what they said then:
ROBERTS: “I have 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.”
ALITO: “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.”
Duke University law professor Erwin Chemerinsky writes in today’s Los Angeles Times that “the testimony given by John Roberts and Samuel Alito at their confirmation hearings just months earlier was a lot of baloney.” Their short activist records already demonstrate the following:
— Alito and Roberts have shown little independence, siding with one another approximately 90 percent of the time.
— They have voted together in 21 of the 23 cases that have divided the Court 5-4 this year.
— Their decisions have come to be marked by an alarming lack of respect for precedent, irreverence for the democratic process, and disregard for constitutional history.
Slate’s Emily Bazelon writes, “And yet some liberal and moderate lawyers and academics didn’t predict this at all. These members of the legal literati urged Roberts’ nomination, promising that he would be a model of restraint and principle and modesty. Why did they think that then? And how do their arguments on his behalf look now?”
The lesson for the Senate, according to Washington Post columnist E.J. Dionne, is not to take the false assurances of Bush or any potential nominee at face value. Should another vacancy occur, Dionne said, “The Senate should refuse even to hold hearings on Bush’s next Supreme Court choice…unless the president reaches agreement with the Senate majority on a mutually acceptable list of nominees.”
More in today’s Progress Report.