Recent comments by Senators Leahy and Schumer critical of Justices Roberts and Alito demonstrate the senators’ significant misunderstanding about the role of the Supreme Court and reveal their own flawed judicial philosophy.
According to Senators Leahy and Schumer, Justices Roberts and Alito misled the committee during their respective confirmation hearings regarding their willingness to uphold the traditions and precedents of the Supreme Court. Nothing could be further from the truth. Actually the Justices have been fairly incrementalist and supportive of judicial precedence in their approach to interpreting constitutional law.
First, the senators rely on an analysis of a series of cases that have one particular telling trait – Senator Leahy and Schumer did not agree with the outcome in each. Such an arbitrary and biased approach to constitutional interpretation belies any notion of making a neutral assessment of the two judges.
Additionally, Justices are expected to decided the cases before them based on the Constitution and related underlying statutes, not on their on personal preferences or partisan predilections. Furthermore the one case the Senators identify in which the two Justices voted to overturn a Supreme Court precedent (Bell Atlantic Corporation v. Twombley) was authored by one of the most liberal members of the Supreme Court, David Souter. Yet, somehow he has escaped their criticism.
Ironically, in several of the other cases cited, Justices Roberts and Alito cited ample evidence that it was the dissenters who failed to follow precedent. Yet it appears that because Senators Leahy and Schumer agreed with those judges, their failure to follow precedent went unnoted.
Finally, this unprecedented attack on Justices Alito and Roberts breaches the doctrine of separation of powers. Just as the US Constitution provides specific zones of authority and power for the executive branch, it also does so for the Legislature and importantly for the Court. Rather than present their arguments to the Court in briefs – the means by which cases should be decided – these Senators have overstepped their legitimate role in attempting to influence the Court. Absent a showing that any Justices have engaged in impeachable offenses members of the Senate have limited ways to affect the court – enacting statutes affecting jurisdiction, setting the number of Justices on the Supreme Court and of course their role in confirming Justices to the Court, e.g. This attempt to press individual Justices to change their vote is contrary to notion of the rule of law and jeopardizes the Court’s ability to act as a neutral arbiter of the law.
Ultimately, these actions cloak Senator Leahy and Senator Schumer’s real agenda – to intimidate justices of the Supreme Court into overlooking the actual constitutional rights and liberties they have sworn to uphold and to instead tilt their rulings in a way that will placate a minority of Senators on the Senate Judiciary Committee. If successful, this would be ahistorical, it would violate precedent and violate the separation of powers.
Horace Cooper is a senior fellow with the American Civil Rights Union