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September 13, 2005

Our Future is at Stake

The confirmation hearings for Supreme Court Chief Justice taking place in the Senate this week are critical to the future of our country.  Considering Supreme Court nominees is the most serious thing US senators do except for declaring war.   In a conference call to bloggers around the nation, Ted Kennedy emphasized the importance of giving Roberts a careful look.  He said, "Will he continue the march toward progress, or follow the stingy view of conservatives" like Scalia and Thomas?

Chris Bowers of mydd.com, commenting today that the majority of America really isn’t paying a lot of attention to Roberts anymore, largely because of Katrina, says “This is a tragedy, because in the midst of Bush's greatest failure, he is on the brink of securing his greatest victory.”

There are both key political and key legal issues at stake.  First the political issues:

  1. Despite requests from the Democrats on the Judiciary Committee, the Bush Administration, in an unprecedented move, has not turned over many of the documents requested, more significantly they have turned over none of the internal documents about what Roberts did while Principal Deputy Solicitor General under Kenneth Starr, during the administration of President George H.W. Bush. 

  2. Former Senator Fred Thompson, the handler appointed to shepard the Roberts’ nomination through committee, has said that Roberts doesn’t have to pierce the veil of attorney/client privilege while he worked for the government.  Thompson is saying he doesn’t have to answer to Congress about what he did while working for the Executive Branch.

  3. The Senators need to stand firm on the above, especially given that there is a second nomination coming down the pike, a nomination that could alter the court more even that the confirmation of Roberts.  If the Democrats stand firm and the vote is lower than expected for confirmation or if, by any chance, the Roberts nomination goes down, the President is less likely to nominate another right-wing candidate. 

  4. Roberts has been less than forthcoming about his membership in the Federalist Society and about his role in the 2000 Florida election. 

  5. Roberts has great political skills and, therefore, has a much better opportunity over time to get the swing votes to come over to his position.  The Republicans have got a personable nominee here; this is no Scalia or Thomas. 

  6. He is the darling of corporate America – he was rated the #1 Circuit Court Judge by the US Chamber of Commerce.

  7. Roberts worked as a significant collaborator with the cabal of right-wing legal beagles like Kenneth Starr, Ted Olsen, and Ed Meese, to roll back the clock on progressive issues.

The three key legal issues that are at stake with the nomination of John Roberts are the right to privacy, civil rights and the interstate commerce clause.  More on each of these after the fold.



Armando lays out the issues related to privacy today at DailyKos.  He says that this is the issue that is most threatened by a Roberts confirmation and suggests that the Democratic Senators on the committee try to obtain Roberts’ opinion of a key decision, Griswold v. Connecticut, a case that concerned police searches of the marital bedroom for contraceptives.  In overturning the Connecticut decision, the Supreme Court said:  

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. . . . Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

Civil Rights

The article on John Roberts at DKosopedia indicates that Roberts has compiled a staunch record of hostility to civil rights.


After a 1980 Supreme Court decision, Mobile v. Bolden, dramatically weakaned certain sections of the Voting Rights Act, Roberts was involved in the administration’s effort to prevent Congress from to making it easier for minorities suggest that Roberts played a significant role in supporting the Reagan Administration’s “race-neutral” approach to combating discrimination. With regard to remedies for segregated public schools and employment discrimination, Roberts advised the Attorney General about the Justice Department’s disagreement with a U.S. Commission on Civil Rights report, which had asserted that mandatory busing and “the fullest use of…affirmative action” were necessary. Roberts explained the Department’s position that, “the objective of a proper desegregation remedy” was simply “the end to official discrimination on the basis of race,” a position that effectively eliminated much of the government’s traditional role in working to eradicate the effects of prior discrimination. to successfully argue that their votes had been diluted under the Voting Rights Act by the ruling. The Supreme Court had decided, despite a lack of textual basis for this interpretation of the statute, that plaintiffs claiming certain violations of the Voting Rights Act, such as minority vote dilution, had to prove that the discrimination was intentional rather than just having a discriminatory effect. Roberts joined the Administration in opposing the “Section 2” extension of the Act, strongly supported by both the House and the Republican-controlled Senate, which would have reinstated the effects standard. Instead, he participated in the effort to amend the extension of the Act so that voting rights plaintiffs would continue to have to prove discriminatory intent, a much harder task.

In addition,

He has taken a strongly pro-government position in the Guantanamo Bay case Hamdan last week, ruling that prisoners there have no enforceable human rights.

In private practice, wrote a friend-of-the-court brief arguing that Congress had failed to justify a Department of Transportation affirmative action program. (Adarand Constructors, Inc. v. Mineta, 2001). He also argued against Title IX as applied to the NCAA in NCAA v. Smith.

Interstate Commerce Clause

The DKosopedia also has information about Roberts’ position on interstate commerce.  It too is not hopeful.  This is where the concern about overthrowing the New Deal comes into the Roberts confirmation questions.  The settled understanding of the interstate commerce clause, since the time of FDR, provides for a broad sense of what Congress can regulate.  However:

In recent commerce clause cases such as U.S. v. Morrison and U.S. v. Lopez however, the Supreme Court has reverted to the right-wing judicial activism that was repudiated almost 70 years ago.

Roberts’ dissent in Rancho Viejo v. Norton, discussed in this article under Environmental Protection and Property Rights, relied on an expansive reading of Morrison and Lopez to assert that Congress cannot regulate collateral damage (such as the killing of arroyo toads) caused by interstate commerce, unless Congress demonstrates to the satisfaction of reviewing judges that the collateral damage itself substantially affects interstate commerce. By preventing Congress from establishing national standards for limiting collateral damage caused by interstate commerce, the views expressed in Roberts’ dissent could lead to a race to the bottom, as states compete with each other to offer the most relaxed regulatory environment to lure major commercial activity.

Roberts clerked for Rehnquist, who has been instrumental in reducing the power of Congress under the interstate commerce clause. NPR reported that Rehnquist is known to insist that his clerks share his views on the interstate commerce clause.

Posted by Lynn Allen on September 13, 2005 at 10:27 AM in National and International Politics | Permalink


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