Alito, Roberts and "The Politicization of the Supreme Court"

The Politicization of the Supreme Court

June 28, 2007

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.”

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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.

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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.

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