Making Conservatives Cringe Since 1977

I'm not Liberal, I'm paying attention.

20 September 2005


God Save the Court

Roberts vs. Scalia and Thomas:How different are they after all? From: In the absence of specific answers by Supreme Court nominee John Roberts to many questions by Senate Judiciary Committee members, some commentators have suggested that Roberts’ statements on his general methods of legal analysis demonstrate that he would be very different from justices like Clarence Thomas and Antonin Scalia on the Supreme Court. That conclusion doesn’t hold up under a closer look at Roberts’ answers and the judicial track records of Thomas and Scalia. That’s why right-wing legal analysts expect Roberts to reach similar results as Scalia and Thomas, even if by a slightly different route. The result would pose serious danger to Americans’ rights and liberties. Textualism and originalism: Some commentators have pointed to Roberts’ statements that he does not have “an overarching judicial philosophy that I bring to every case,” suggesting that this is different than a Justice Scalia, who purportedly decides all cases in accord with his view of the text and “original meaning” of constitutional provisions.[1] Yet in many of the Court’s recent decisions severely limiting Congress’ authority on “federalism” grounds, Scalia, Thomas, and Chief Justice Rehnquist have strayed far from language and original intent. In particular, although the Eleventh Amendment by its terms bars only lawsuits against a state by citizens of another state, that provision has been transformed by the most conservative justices on the Court into a broad-reaching doctrine of state sovereign immunity that prevents a state’s own citizens from suing it to vindicate their rights against age and disability discrimination under federal law. In one case, for example, Scalia’s majority opinion explicitly conceded that the Court’s view of the Eleventh Amendment took it beyond its “precise terms” and rested instead on “constitutional tradition and precedent.”[2] Recently, even some conservatives have criticized Justice Scalia’s inconsistent use of originalist theories because of his vote to uphold federal law prohibiting the medical use of marijuana, complaining that Scalia’s opinion “appears to put his commitment to majoritarianism over his commitment to originalism.”[3] Roberts’ views may be no different than Scalia’s in this respect. Legislative History: Some commentators have also pointed to Roberts’ statement that although he first looks to the text of a statute or constitutional provision, he has also “quoted and looked to legislative history in the past” to help interpret a law as reflecting significant differences from Thomas and Scalia.[4] In fact, while these justices have criticized the use of legislative history when they believe it contradicts a statute’s language, both have joined or written opinions referring to legislative history in addition to text to interpret a statute.[5] And both Thomas and Scalia, of course, consider what they regard as the legislative history of constitutional provisions to determine their original intent. Again, the differences among the three jurists may well be more apparent than real. Right to privacy: Perhaps most significantly, some commentators suggested that Roberts distinguished himself from Thomas and Scalia by stating on his first day of testimony that the Constitution protects a right to privacy. Yet Roberts’ words in recognizing such a privacy right were almost identical to the words used by Thomas at his confirmation hearing, and Roberts explicitly noted that every member of the Court, presumably including Scalia and Thomas, recognizes such a right “to some extent or another.”[6] In response to follow-up questioning by senators, Roberts declined to identify any differences between himself and Justice Thomas on this important subject. Since Roberts would not say to what “extent” the Constitution protects personal privacy, beyond contraceptive use by married couples, he gave no reason to believe that he will act any differently than Scalia and Thomas when it comes to reproductive choice, sexual privacy for gay and lesbian people and non-married couples, and families’ difficult decision-making around end-of-life medical issues. The strongest evidence that there is no meaningful difference between Roberts and justices like Thomas and Scalia may come directly from conservative legal advocates themselves. Wendy Long, a former Thomas clerk and counsel to the Judicial Confirmation Network, has agreed that “while Roberts might use a different approach, he’ll likely end up in the same place on cases as Scalia and Thomas.”[7] Long, joined by the Federalist Society’s Leonard Leo and Jay Sekulow of Pat Robertson’ American Center for Law and Justice, have recently called Roberts “a promise kept” by a President who promised to appoint justices like Scalia and Thomas.[8] That promise threatens the rights of all Americans. NOTES: [1] See A. Liptak, “Chief Justice Nominee Speaks Volumes, While Saying Little,” New York Times (sept. 16, 2005). [2] See College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 688 (1999). Accord, e.g., Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363 (2001)(explaining that although “by its terms the [Eleventh] Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment’s applicability to suits by citizens against their own States.”) [3] See R. Barnett, “The Ninth Circuit’s Revenge,” National Review Online (June 9, 2005)(discussing decision in Gonzales v. Reich). [4] See C. Lane, “A Conservative, Yes, but Not a Scalia,” Washington Post (Sept. 15, 2005). [5] See, e.g., General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 606 (2004) (Thomas, J., dissenting)(contending that the “only relevant piece of legislative history” supported his reading of the text of the statute in question); J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International Inc., 534 U.S. 124, 136, n.7 (2001) (discussion in majority opinion by Justice Thomas, joined by Justice Scalia, of Senate report along with statute’s text). [6] See People For the American Way, “Roberts’ So-Called Commitment to Privacy” (Sept. 14, 2005). [7] See T. Brune, “Right could be caught in the middle by Roberts,” Newsday (sept. 18, 2005). [8] Memorandum from Leonard Leo, Wendy Long, and Jay Sekulow to Interested parties re; John Roberts, Judcial Conservative (Sept. 16, 2005).

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