Conservative justice

ERWIN CHEMERINSKY teaches law and political science at Duke University Law School.

THE SUPREME COURT term that ended Thursday confirmed exactly what many people had feared: that the testimony given by John Roberts and Samuel Alito at their confirmation hearings just months earlier was a lot of baloney.

During those hearings, the two presented themselves as open-minded jurists lacking an ideological agenda. Roberts likened a Supreme Court justice to an umpire, a neutral arbiter whose personal political views are irrelevant to decisions. Both Roberts and Alito promised fidelity to the court’s precedents.

But instead, Chief Justice Roberts and Justice Alito have behaved exactly as their opponents predicted. There was not one case this term in which the court was not ideologically divided, and not one in which Roberts and Alito did not vote for the result that their conservative backers would have wanted. In virtually all of these cases, they were joined by justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.


The result was the most overwhelmingly conservative term since the 1930s. Ever since Richard Nixon ran for president in 1968, conservatives have been striving for a reliable majority voting as a bloc across all areas of the law — and this year they finally got it.

Although Roberts and Alito did not expressly vote to overrule precedents, they chipped away at them in a series of niggling decisions. For instance, they upheld a federal law prohibiting so-called partial-birth abortion — even though just seven years ago, the Supreme Court struck down an almost identical state law as a violation of Roe vs. Wade. On Thursday, they ruled that public schools cannot consider race to achieve desegregation except under certain limited conditions — even though three years ago, the high court held that colleges and universities have a compelling interest in achieving diversity and may use race as a factor in their admissions decisions.

A few years ago, the court upheld a provision of the Bipartisan Campaign Finance Reform Act that limited broadcast advertisements by corporations and unions with regard to specific candidates to 30 days before primary elections or 60 days before a general election. On Monday, the court did not expressly overrule its earlier decision, but it implicitly did so by adopting a standard that will allow for virtually unlimited advertising by corporations and unions before elections.

At their confirmation hearings, both Roberts and Alito presented themselves as compassionate, insisting that they would not ignore the needs and rights of the powerless. Yet the decisions this term were especially cruel, advancing the traditional conservative preferences for the government over criminal defendants and the interests of business over consumers and employees. In a particularly outrageous decision, the court ruled, 5 to 4, that a criminal defendant was barred from appealing when a federal district court mistakenly gave him 17 days, rather than 14, to file his appeal. Even though the defendant followed the instructions of the district court, the high court held that he was barred because the trial judge made a mistake.

In another case, the high court, again ruling 5 to 4, made it extremely difficult for victims of pay discrimination to sue. The court held that a claim must be brought within 180 days of the time a person’s pay is set, even though it is rare that a person would know of another employee’s pay in this time period and have the information needed to be able to bring a discrimination claim.

This term provides a powerful reminder of the importance of presidential elections in determining the composition of the court. If John Kerry or Al Gore had picked the replacements for William Rehnquist and Sandra Day O’Connor, it would have been a vastly different year at the Supreme Court.


It also is a reminder that the confirmation process is not working. Nominees come forward and murmur all the right platitudes, refusing to answer specific questions about their views. They promise to be open-minded, and they present witnesses who attest to their fairness. For Roberts and Alito, this was enough to secure their confirmation.

But now that they are on the bench, those promises are forgotten. Roberts and Alito are voting exactly as their fiercest critics predicted, but nothing can be done about it now. Both are under 60, and each could be on the court another 30 years.