In an effort to position Judge Sonia Sotomayor as a moderate or centrist, Senate Democrats are trying to paint the current Supreme Court as radically right-wing. Time and again in the opening session of Judge Sotomayor’s confirmation hearings, senators decried the “activism” and conservative bias of the current Supreme Court, and of Chief Justice John Roberts in particular.
Sen. Chuck Schumer (D., N.Y.) set the tone, suggesting that Chief Justice Roberts “has tried to change the rules,” Whereas Judge Sotomayor has been an objective umpire. According to Schumer, “any objective review of Judge Sotomayor’s record on the Second Circuit leaves no doubt that she has simply called balls and strikes for 17 years, far more closely than Chief Justice Roberts has during his four years on the Supreme Court.”
Senator Schumer was not alone. Sen. Russ Feingold (D., Wis.) charged that “the conservative majority on the Supreme Court can fairly be described as ‘activist’ in their disregard for precedent and their willingness to ignore or override the intent of Congress.” Sen. Richard Durbin (D., Ill.) echoed this complaint, accusing the Roberts Court of issuing “decision after decision in recent years that represent a triumph of ideology over common sense and concern for ordinary Americans.” Sen. Al Franken (D., Minn.), the Judiciary Committee’s newest member, expressed his fear that “judicial activism is on the rise,” and he did not mean it as a joke.
The claims made by Senate Democrats echo charges made in recent press accounts and academic commentary. When the most recent Supreme Court term ended, numerous commentators proclaimed that the court had made a “move to the right.” A rash of stories made the same claim after the 2006–07 term, warning of a conservative “counterrevolution” led by a “phalanx” of right-wing judges. Yet as I explained at the time, such charges were premature, and a year later many of the same reporters and commentators wondered where the conservative court had gone.
In the Sotomayor hearings, Sen. Sheldon Whitehouse (D., R.I.) charged that “The Roberts Court has not kept the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.” According to Whitehouse, the Roberts Court has a “striking record” of “overturning congressional statutes.” In fact, in the last four years the liberals on the court have gone against Congress more often than the conservatives. Not only did the court reject the combined judgment of the executive and legislative branches in Boumediene v. Bush, but the liberal justices have also sought to overturn the federal ban on partial-birth abortion that passed both houses of Congress by wide margins. Just this past term, the Roberts Court notably declined to consider constitutional challenges to federal civil-rights laws, resolving the cases on narrow statutory grounds.
Sen. Herb Kohl (D., Wis.) said that on the issue of abortion, despite Roberts and Alito’s assurances that they would regard precedent, “‘Super precedent’ went out the window and women lost a fundamental constitutional protection that had existed for 36 years” as the court voted 5 to 4 in Gonzales v. Carhart “to overturn the key holding in Casey.” This case was the first time the Supreme Court had upheld a ban on a specific abortion procedure (partial-birth), but it did not mark a dramatic change in the law. While Carhart all but overturned the court’s 2000 decision invalidating Nebraska’s partial-birth abortion ban, it upheld and applied the reigning standard governing abortion statutes: the “undue burden” test established in Planned Parenthood v. Casey. Indeed, the opinion was written by Justice Kennedy, one of the three judges who wrote the Casey opinion.
Some Senate Democrats have also complained that John Roberts is far more conservative than anyone imagined when he was nominated. Jeffrey Toobin also made this suggestion in his recent New Yorker profile of the chief justice, cited favorably by Senator Whitehouse. Such claims are silly. Senate Democrats blocked Roberts’s confirmation to the U.S. Court of Appeals for the D.C. Circuit in 1992 and stalled him again in 2001 precisely because they believed he would be a conservative judge. For the same reason, 22 senators voted against his confirmation (including some who now claim they were misled).