In a recent, highly publicized letter to Supreme Court nominee John Roberts, Sen. Arlen Specter (R., Pa.) mapped out some questions that Roberts can expect–questions not entirely friendly, questions that reflect an adversary stance, closer to the stance of the Democrats on the Senate Judiciary Committee. Precisely why questions of this kind should be emanating from the Republican chairman of the committee is a serious question, somehow never raised in the reporting of this letter.
Specter has been involved for many years with legislation dealing with the disabled. In his letter to Roberts, he professed his concern about potential threats to the power of Congress to legislate on these issues. His questions involved the powers of Congress under the Fourteenth Amendment, the Commerce Clause, and the attempt in recent years to revive the Eleventh Amendment. (That Amendment asserted a sovereign immunity on the part of states against private suits launched by individuals in federal courts.) Just last year, in Tennessee v. Lane, a narrowly divided Supreme Court upheld the application of the Americans with Disabilities Act against the State of Tennessee. The state had failed to provide ramps that would make some courthouses fully accessible to people who could not manage stairs. The decision found Chief Justice Rehnquist in dissent, joined by Justices Scalia and Thomas. Rehnquist and his allies were trying to hold to the jurisprudence they had been trying to fashion under the Eleventh Amendment, a jurisprudence that would have given the States more insulation from such lawsuits. The conservative judges wrote with a certain edge because their majority had just slipped away: A mere three years earlier, the Court had held to the Eleventh Amendment and rejected precisely the same kind of claim against the State in Board of Trustees of the University of Alabama v. Garrett.
Now, it appears, Specter is trying to force Roberts to take sides in the Court’s split on this issue: Would he align himself with Scalia . . . or with Specter?
Specter asked how Roberts would account for the shift in the Court: Why would the judges have rendered a different decision in Lane than in Garrett, and would Roberts be an addition then to the side of Scalia or of Stevens and Breyer? But Specter himself touched to the key to the problem without apparently noticing it. “Except for the swing vote of Justice O’Connor,” he wrote, and dramatic pictures of a paraplegic crawling up the stairs, “it is hard to discern a legal difference” between the cases.
Exactly: Sandra Day O’Connor. She had joined Scalia & Co. in forming a majority to reject the application of the ADA to Alabama in the Garrett case. But now she had simply changed her mind, and decided to uphold the same kind of claim in regard to Tennessee. Why? Well, Justice O’Connor’s trademark is that she never fully explains: Her “jurisprudence” has been marked by the inclination to make judgments turn on facts ever more particular to the case at hand. Her celebrated “genius,” such as it is, has been precisely to avoid the kinds of reasons that may form into firm principles, which may actually offer guidance for the cases to come–and place restraints on the freedom of judges to change their minds as they careen from case to case.
And yet this was the jurist whom Specter had been celebrating. This was the master of law he was inviting to stay on the Court in case he and his colleagues could not readily confirm a successor. If Specter were really in the dark as to how these cases, so morally indistinguishable, could have produced results so dramatically different, he had evidently not been paying close attention.
MORE POWER TO CONGRESS? REALLY?
Specter has struck the posture of a legal scholar, probing out of intellectual curiosity–but in fact, he seems to have drifted into the role of Wile E. Coyote in the Road Runner cartoons: In the course of his letter he was laying traps that would close at the wrong moment, and bombs that would explode on himself.
Drawing on Scalia, Specter complained that the Court–in assembling a large collection of facts to explain and justify the Americans with Disabilities Act–had arrogated to itself the role of checking Congress’s homework. Should Congress not be given a certain deference, he asked, in finding and asserting the facts that establish the ground of its legislation? Quite so, but Specter seems to have forgotten a certain issue that engaged that claim far more importantly than the matter of disabilities.
In Roe v. Wade, the Court had professed to find an inscrutable problem in the question of when human life begins. The argument was made then that Congress had far larger, more flexible powers than a court to hold hearings, gather evidence, and find the facts that furnished the ground of judgment. And so Congress in the early 1980s undertook a survey of the leading textbooks on embryology and gynecology, as part of its work on the Human Life Bill. The Judiciary Committee found that there was no mystery at all about the state of the embryo or the fetus, or the question of when that distinct human life began. All the textbooks yielded the same answer: the union of a male and female gamete to form a zygote, a new entity with a genetic makeup quite distinct from that of either parent.
And, more recently, Congress has engaged in a strenuous compilation of facts to show that there is no interest of “maternal health” that could plausibly be advanced by a partial-birth abortion. Yet the courts so far have shown no inclination to respect these exertions of Congress in setting out the facts that justify the bill on partial-birth abortion. If Specter really wished to be serious in asserting again, even more forcefully, the powers of Congress under the Fourteenth Amendment, he would strengthen the powers of Congress to legislate on abortion . . . but of course that is not what he has in mind.
SPECTER TO ROBERTS: TAKE SIDES . . . NOW!
Specter expressed concern in his letter that Justice Scalia was taking a new, cramped view of the power of Congress, under the Fourteenth Amendment, to legislate on matters apart from racial discrimination. This is not exactly right. In the first place, Scalia has continued to hold to the expansive powers of Congress under the commerce clause, as long as a subject has a plausible connection to things economic or commercial; we saw this in the case this past summer of medical marijuana in California (Gonzales v. Raich). Scalia, Rehnquist, and Kennedy would make only the most delicate adjustment in the commerce clause as it was refashioned under the New Deal; an expansive power that covers marijuana could readily cover commerce that creates burdens for the disabled.
Justice Clarence Thomas, however, wishes to go substantially further in rolling back New Deal jurisprudence on the commerce clause–which sets up the Scalia vs. Thomas fight in which Specter wants to embroil nominee John Roberts.
Again, Specter seems to be sweeping here far more broadly than he realizes: To the extent that he would argue for larger powers for Congress, under the Fourteenth Amendment and the commerce clause, he would firm up the ground for Congress to legislate, in ways deeper and broader, to protect unborn children in the womb. If he approves Scalia’s reading of the commerce clause, he would support a decision to uphold the federal law on partial-birth abortion, which was cast in terms of the commerce clause. If John Roberts comes closer to Clarence Thomas in his understanding of the commerce clause, a Court majority would have to make an argument under the Fourteenth Amendment to sustain that legislation. It is not clear to those who know John Roberts that he has come to a judgment yet on this matter. But to the extent that Specter is firming up the ground of congressional power under the Fourteenth Amendment, he would seem to be running against the interest he has marked as one of his highest concerns: preserving, unimpaired, the right to abortion shaped and sustained by the Court.
But put aside for a moment Specter’s own concerns about the disabled and about abortion. He is not acting here on his own. His letter was sent from his office as chairman of the Committee on the Judiciary, and he was put in that place by the Republican caucus. As part of his ascension to that post, he had promised his colleagues that he would act as the loyal shepherd for the judicial nominees put forth by this Republican administration. Why, then, is he seeking to press a wedge between Scalia and Roberts, and force a conflict among the conservative justices? It is long past wake-up time. Senators Cornyn or Kyl, Brownback or Coburn, would be wholly warranted in calling a meeting, right now, of the Republican members of the committee. And the question they would put could be detached from the citation of cases or other lawyer-talk. The question, put plainly, is this: What the hell did Specter think he was doing?
–Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and a senior fellow at the Ethics and Public Policy Center in Washington.