Monday, January 16, 2006

Supreme Musical Chairs...

It seems bloggers are beginning to surmise that possibly the Roberts/O'Connor/Rehnquist switcheroo might just leave the court ideological the same even if Alito is confirmed.

Daily Kos writes in a post of the remarkable lack of concern by Democrats on the impending Alito confirmation and posits a theory.

[T]he original replacement proposed for Sandra Day O'Connor was now-Chief Justice John Roberts. Roberts is...likely [a] clone of O'Connor on many issues. O'Connor was seen as probably the most pro-business Justice on the court, and Roberts was expected to be her clone on those matters. Then Chief Justice Rehnquist died, and Roberts' nomination was transferred from O'Connor--who hadn't yet vacated the bench--to that of Rehnquist.
To shed context into the Roberts/Alito paradigm, the International Herald Tribute has an interesting analysis that compares what Roberts said in the Senate hearings against what Alito said.

Judicial Philosophy

Judge Alito: "The principles don't change. The Constitution itself doesn't change. But the factual situations change."

Judge Roberts: "I do not have an overarching judicial philosophy that I bring to every case. I tend to look at the cases from the bottom up rather than the top down."
Both nominees were asked whether they considered themselves "originalists" who believe, like Justices Scalia and Thomas, that the Constitution must be interpreted in light of the original intent of its framers. Judge Alito seemed to endorse originalism.

Chief Justice Roberts, by contrast, appeared to disavow originalism, emphasizing that he has no "overarching judicial philosophy." His explanation that he begins with the facts of a case from the "bottom up" rather than imposing a theory like originalism from the "top down" signals that he might allow for more constitutional evolution than Judge Alito.

Roe v. Wade

Alito: "If 'settled' means that it can't be re-examined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play then it is a precedent that is protected, entitled to respect."

Roberts: "It's settled as a precedent of the court, entitled to respect under principles of stare decisis."

The nominees were asked if they agreed with Chief Justice Roberts's earlier comments that Roe was the "settled law of the land." Both engaged in Clintonian hairsplitting about what, precisely, "settled" means.

Chief Justice Roberts seemed to reaffirm that Roe was a "settled precedent," but left himself wiggle room by saying that the decision was "entitled to respect" under the doctrine of stare decisis, which means "let the decision stand."

Judge Alito pointedly refused to say that Roe was "settled," leading some commentators to conclude that he might be more likely to overturn Roe v. Wade.

"I'd bet a large sum of money that Alito won't vote to retain Roe v. Wade, and I wouldn't bet a nickel on Roberts," said William Stuntz, a law professor at Harvard.

But some of Judge Alito's supporters disagree. "I don't think there's a great deal of daylight between Alito and Roberts on privacy," said Charles Fried, of Harvard Law School, who testified for both nominees and has predicted that neither would overturn Roe. "Roberts said Roe is 'settled law' and everyone took that as a commitment not to vote against it. Alito is very correct, and in his correctness he just thinks it's inappropriate to give that kind of commitment."

Congressional Power

Alito: "I think that Congress's ability to reason is fully equal to that of the judiciary."

Roberts: "I don't think the court should be taskmaster of Congress. And I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact-finding."

In both confirmation hearings, Democratic and Republican senators expressed concern about the Rehnquist Court's willingness to strike down acts of Congress. At issue is the scope of Congress's power to regulate interstate commerce.

In a series of 5-to-4 decisions, conservative justices have overturned federal laws that they said did not substantially affect interstate commerce, like laws regulating guns in schools or violence against women.

Chief Justice Roberts's suggestion that Congress has more "institutional competence" than the Supreme Court to engage in "fact-finding" indicates that he would be more deferential to Congress than Judge Alito would. Chief Justice Roberts went out of his way to emphasize that the Supreme Court, unlike Congress, is ill equipped to make policy judgments or predictions about the economic effects of laws.
Chief Justice Roberts "might even be more deferential than Chief Justice Rehnquist and Sandra Day O'Connor, who often joined Justices Scalia and Thomas and Kennedy in imposing strict limits on federal power," said John Yoo, a law professor at the University of California at Berkeley.

Executive Power

Alito: "The whole issue of the extent of the president's authority to authorize the use of military force without Congressional approval has been the subject of a lot of debate."

Roberts: "If the executive has acted unconstitutionally, [courts] have the obligation to block the executive action."

The most controversial question in the Alito hearings was the scope of a theory
that some scholars call the "unitary executive."

In its weak form, this theory says the president has the power to fire executive branch officials, like the independent counsel. In its more aggressive form, advanced by scholars like Professor Yoo, the unitary executive theory says the president has broad authority to act in wartime without checks by Congress or the courts.

Not all conservatives agree: Justice Scalia, for example, has said that the president needs explicit authorization from Congress to suspend habeas corpus, while Justice Thomas says the president has broad authority to act without constraint.

"I don't see a lot of daylight between Alito and Roberts on executive power issues," said Professor Yoo. "I think they would be closer to Chief Justice Rehnquist, who said we are at war, Congress has authorized the war and that authorization gives the president all the traditional powers."

Other scholars detect more of a difference, noting that Judge Alito at one point mischaracterized a famous opinion by Justice Robert Jackson imposing limits on presidential power. "I think Roberts was more comfortable with the idea of deciding a presidential power question, while Alito was a little less sure of his ability to be able to rein in a president," said John Barrett of St. John's Law School. "Each judge is clearly a believer in executive power, but Roberts feels a little more comfortable being assigned to limit it than Alito does right now."

The analysis is an interesting read -- if nothing else to see how different experts view nuanced but important variances between how Alito and Roberts arrive at their legal conclusions. Constitutional conclusions that could affect the nation for decades to come.

Please dismiss the quote from Professor Yoo on presidential power, however. I mean using the words from Yoo when discussing executive privilege is like quoting O.J. Simpson when talking about the efficacy of DNA evidence in murder trials.

Yoo, a party hack -- I mean constitutional scholar -- advised Bush that laws during wartime are exactly what the president decides.

But yes, there may be valid reasons to hope Roberts will take up the centrist role, a role all the more pivotal because Roberts is no mere associate, but the big Kahuna, the chief justice of the Supreme Court.

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