Supreme Court 2000s: on Principles & Values

Arlen Specter: Senate speaks to entire Supreme Court during hearings

SEN. SPECTER: Let me take up the Americans with Disability Act. Justice Scalia criticized [Congress’ ADA policy. That policy was based on] a voluminous record--13 congressional hearings, 30,000 people were surveyed.

ALITO: [Scalia’s dissent] addresses a difficult problem the court has grappled with over the years, and that is the scope of Congress’ authority under the 14th Amendment. Justice Scalia’s [argument] is that Congress doesn’t have additional authority to enact prophylactic measures outside of the area of race.

SPECTER: It’s up to the Congress to have hearings, up to the Congress to find facts, up to the Congress to find out what goes on in the real world. We’re speaking not only to you, Judge Alito, but to the court. The court watches these proceedings. They ought to know what the Congress thinks about making us schoolchildren or challenging our method of reasoning. We’re considering legislation which would give Congress standing to go into the Supreme Court to uphold our cases.

Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings Jan 11, 2006

Charles Schumer: Alito responds, but doesn’t really answer questions

SEN. SCHUMER: You testified yesterday that you’d keep an open mind. Isn’t that right?

ALITO: I did and I do.

SCHUMER: Now are you aware of any nominee in the history of the republic who has come before the Senate and testified he’d keep a closed mind?

ALITO: I’m not aware of that. But I can only speak for myself.

SCHUMER: This morning’s newspapers were filled with headlines to the effect you would keep an open mind. My friends on the other side of the aisle have repeatedly said you’ve answered over 200 questions. Now it’s probably 300. But a response is not an answer. And you’ve responded to more than 300 questions but, in all due respect, you haven’t answered enough of them. And so, again, I think we ought to make clear that, at least to many of us here, we haven’t gotten the answers to questions, yes or no, on some important issues.

Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings Jan 11, 2006

Samuel Alito: Pledge of recusal does not last for 12 years

SEN. HATCH: This business with Vanguard, when you signed that back in 1990, 12 years before the matter for which you are being criticized -- that particular statement said will you, during your “initial service.” You’ve just honestly explained that basically you made a mistake. But the fact of the matter is that “initial service” doesn’t mean 12 years away, does it, when there’s no chance in the world that you could ever receive any monetary benefit from Vanguard?

ALITO: Well, I don’t think initial service means 12 years away.

HATCH: Neither do I and neither does anybody who cares about justice and what’s right in this matter.

SEN. KENNEDY: When you made a pledge to the committee that you were going to recuse yourself, I’d just like to know how long that was going to be. Was that going to be two years, was it going to be five years?

ALITO: Senator, I did not rely on that time limitation. I would say that 12 years later is not the initial period of service.

Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings Jan 11, 2006

Samuel Alito: Constitution doesn’t change but the factual situations do

I think the Constitution is a living thing in the sense that matters, and it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things. It sets out some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up. Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings Jan 10, 2006

Samuel Alito: All the courts should be insulated from public opinion

Judges should do what the law requires in all instances. That’s why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected so that they don’t do anything under fire. The legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution & the law. It should not sway in the wind of public opinion at any time Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings Jan 10, 2006

Charles Schumer: Nominees must prove they’re not extreme

While every Supreme Court nominee has a great burden, yours, Judge Alito, is triply high. First, because you have been named to replace Justice Sandra Day O’Connor, the pivotal swing vote on a divided court; second, because you have been picked to placate the extreme right wing after the hasty withdrawal of Harriet Miers; and, finally, because your record of opinions and statements on a number of critical Constitutional questions seems quite extreme. Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings Jan 9, 2006

John Cornyn: Justices should respect law, not impose political agendas

Groups are trying to defeat your nomination because you will not support their liberal agenda. I want judges on the Supreme Court who will not use their position to impose a political agenda on the American people. I want judges on the Supreme Court who will respect the words and meaning of the Constitution, the laws enacted by Congress. A Supreme Court appointment is not a free ticket to rewrite our laws however you and your colleagues see fit.“ Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings Jan 9, 2006

Samuel Alito: 1960s Princeton: “privileged people behaving irresponsibly”

[I was an undergraduate at Princeton] in the late 1960s and early 1970s. It was a time of turmoil at colleges and universities. And I saw some very smart people and very privileged people behaving irresponsibly. And I couldn’t help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community. Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings Jan 9, 2006

Samuel Alito: Good judges can change their minds during a case

Good judges develop certain habits of mind. One of those habits of mind is the habit of delaying reaching conclusions until everything has been considered. Good judges are always open to the possibility of changing their minds based on the next brief that they read, or the next argument that’s made by an attorney who’s appearing before them, or a comment that is made by a colleague during the conference on the case when the judges privately discuss the case. Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings Jan 9, 2006

Samuel Alito: Attorneys want results; judges want only the rule of law

I’ve learned a lot during my years on the 3rd Circuit, particularly, I think, about the way in which a judge should go about the work of judging. I’ve learned by doing, by sitting on all of these cases. When I became a judge, I stopped being a practicing attorney. And that was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda, a judge can’t have any preferred outcome in any particular case and a judge certainly doesn’t have a client. The judge’s only obligation -- and it’s a solemn obligation -- is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires. Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings Jan 9, 2006

Samuel Alito: Pledges to administer justice without respect to persons

It’s been a great honor for me to spend my career in public service. It has been a particular honor for me to serve on the court of appeals for these past 15 years, because it has given me the opportunity to use whatever talent I have to serve my country by upholding the rule of law. And there is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law. Fifteen years ago, when I was sworn in as a judge of the court of appeals, I took an oath. I put my hand on the Bible & I swore that I would administer justice without respect to persons, that I would do equal right to the poor and to the rich, and that I would carry out my duties under the Constitution and the laws of the United States. And that is what I have tried to do to the very best of my ability for the past 15 years. And if I am confirmed, I pledge to you that that is what I would do on the Supreme Court. Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings Jan 9, 2006

Harriet Miers: Reconsideration under appropriate circumstances is essential

Judicial activism can occur when a judge ignores the principles of precedent and stare decisis. Humility & self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent. Any decision to revisit a precedent should follow the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling. Source: 2005 SCOTUS hearing by Senate Judiciary Committee Oct 18, 2005

Harriet Miers: First woman president of Texas Bar

Bush used the phrase “first woman” five times in his nomination announcement, pointing out that Miers had blazed a trail for women in the male-dominated world of corporate law in Texas, eventually becoming president of the State Bar in 1992. After Bush’s election as Governor of Texas in 1994, Bush appointed her to head the Texas Lottery Commission. She later followed Bush to the White House, where she held several jobs, and was tapped in 2004 to become White House counsel. Source: Michael Schere, Der Spiegel (Germany) on 2005 SCOTUS hearing Oct 4, 2005

Harriet Miers: No publications in constitutional law, unlike Roberts

Throughout her career, Miers has had little public involvement in constitutional law. This is in marked contrast to the president’s last nominee, Chief Justice John G. Roberts, who was widely seen as one of the nation’s most accomplished constitutional minds, having argued 38 cases before the Supreme Court. Miers published only two scholarly articles -- in Texas Lawyer, a trade magazine. One article concerned the challenges of merging corporate law firms. Source: Michael Schere, Der Spiegel (Germany) on 2005 SCOTUS hearing Oct 4, 2005

Harriet Miers: Conservative Democrat in 1980s

Miers is a former Democrat who became a leader in Texas’ moderate Republican legal establishment. In 1987 and 1988, when Miers was a conservative Democrat in Texas, she donated $3,000 to Democratic campaign committees -- $1,000 each to then-Sen. Al Gore of Tennessee, who was running for president, to Sen. Lloyd Bentsen of Texas, who was running for re-election, and to the Democratic National Committee. Source: San Jose Mercury News on 2005 SCOTUS hearing Oct 4, 2005

Harriet Miers: Low-key but high-precision style

Miers’s low-key but high-precision style is particularly valued in a White House where discipline in publicly articulating policy and loyalty to the president are highly valued. Formerly Bush’s personal lawyer, Miers came with him to the White House in 2001 as staff secretary, the person who screens all the documents that cross the president’s desk. She was promoted to deputy chief of staff before Bush named her counsel. She replaced Alberto Gonzales, who was elevated to attorney general. Source: Michael A. Fletcher, Washington Post, on 2005 SCOTUS hearing Jun 21, 2005

Harriet Miers: Served one term on Dallas City Council and then bowed out

Ask what motivated her to seek election to the Dallas City Council in the late 1980s, she says only: “I was asked to run.” Ask why she bowed out after one term, and she is only a bit more expansive. The structure of the council had changed, she explains, converting her citywide seat into one representing one district. That did not suit her interest, so she moved on. “It was a natural progression,” she said. Source: Michael Fletcher, Washington Post, on 2005 SCOTUS hearings Jun 21, 2005

John Roberts: Positions a lawyer presents don’t have to be his own beliefs

Q: What is a lawyer’s obligation, as you understand it, under the Code of Legal Responsibility?

A: I think the standard phase is “zealous advocacy” on behalf of a client. You don’t make any conceivable argument. The argument has to have a reasonable basis in law, but it certainly doesn’t have to be a winner. I’ve lost enough cases that I would hate to be held to that standard. But if it’s an argument that has a reasonable basis in the law, including arguments concerning the extension of precedent and the reversal of precedent-the lawyer is ethically bound to present that argument on behalf of the client. And there is a longstanding tradition in our country, dating back to one of the more famous episodes, of course, being John Adams’ representation of the British soldiers involved in the Boston Massacre, that the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer as his personal beliefs or his personal positions.

Source: 2003 SCOTUS hearing before the Senate Judiciary Committee Jan 29, 2003

John Roberts: There are certain areas where literalism doesn’t work

Q: You have told NPR you support an originalist approach to constitutional interpretation, saying the reason that that is the way it was in 1789 is not a bad one when you are talking about construing the Constitution. Of course, the Constitution in 1789 did not have the Bill of Rights. It allowed African-Americans to be enslaved back then. So the originalist concept can’t be an exact one, can it?

A: I don’t have an overarching, uniform philosophy. To take a very simple example to make the point, I think we’re all literal textualists when it comes to a provision of the Constitution that says it takes a two-thirds vote to do something. You don’t look at what was the intent behind that, and, you know, given that intent, one-half ought to be enough. On the other hand, there are certain areas where literalism along those lines obviously doesn’t work. If you are dealing with the Fourth Amendment, is something an unreasonable search and seizure, the text is only going to get you so far.

Source: 2003 SCOTUS hearing before the Senate Judiciary Committee Jan 29, 2003

John Roberts: There is a right answer in every court case

I do think there is a right answer in a case, and if judges do the work and work hard at it, they’re likely to come up with the right answer. I think that’s why, for example, in the DC Circuit, 97% of the panel decisions are unanimous, because they are hard-working judges and they come up with the same answer in a vast majority of the cases. There are certainly going to be disagreements. That’s why we have Courts of Appeals, because we think district courts are not always going to get it right. Source: 2003 SCOTUS hearing before the Senate Judiciary Committee Jan 29, 2003

Anthony Kennedy: Bush v. Gore: can't recount votes fairly across counties

The Court reversed the Florida Supreme Court decision ordering manual recount of presidential election ballots. A majority agreed that the recount violated the Constitution's equal protection clause, since counting standards varied among counties. The decision effectively ended the presidential election, handing a victory to George W. Bush.

Holding (Rehnquist, Kennedy, O'Connor, Scalia, Thomas): "Any manual recount of votes seeking to meet the deadline would be unconstitutional under the 14th Amendment." [Recount cannot be done fairly by the deadline].
Concurrence (Rehnquist, Scalia, Thomas): "The state legislature has provided mechanisms for contesting election results." [no federal intervention needed].
Dissent (Stevens, Ginsburg, Breyer, Souter): "Counting every legally cast vote cannot constitute irreparable harm. Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." [Count every vote].