Bench Memos

Pat Leahy’s “Irresponsible Rhetoric” About Chief Justice Roberts

In an interview with Politico, Senator Leahy offered these two pearls of wisdom about Chief Justice Roberts and the Supreme Court:


1.  “I think in his actions and the actions in which he has joined, he [Chief Justice Roberts] has made the court an arm of the Republican Party.”


2.  “They (the Republicans) say they don’t want an activist Supreme Court, but this is the most activist Supreme Court we have ever seen, running roughshod over the Constitution, like Plessy v. Ferguson did.”


Let’s begin with quote 1.  The charge that Chief Justice Roberts “has made the court an arm of the Republican Party” is, needless to say, a severe charge.  Indeed, it is a charge so severe that it is irresponsible for anyone—much less the chairman of the Senate Judiciary Committee—to make it without offering any evidence in support.  But that is exactly what Leahy has done.


What might Leahy’s argument consist of?  Perhaps he is upset that Roberts voted in support of the Court’s ruling that the federal partial-birth abortion ban is facially constitutional.  Oops, wait a second—Leahy (and lots of other Democrats) voted for that ban, so that ruling presumably is not the target of his ire.


One might guess that Leahy disagrees particularly with the Court’s rulings in the Seattle/Kentucky school cases and on the as-applied challenge to the campaign finance law.  If so, he ought to offer some sort of argument why they’re not only wrong but so beyond the pale that Chief Justice Roberts’s vote can fairly be understood as doing the bidding of the Republican Party.  Leahy can’t remotely do that.


Moreover, it’s not at all clear that the very narrow result in the schools case can fairly be described as comporting with a partisan Republican position.  According to a Newsweek poll following the schools ruling, 82% of Americans believe that race should not “be allowed as a factor in making decisions about employment and education.”  (From the same poll, a separate question specifically about the ruling somehow yielded very divided sentiment, though the fact that 32% were “unsure” about the ruling suggests that that question may have been poorly understood.)  As the success of statewide initiatives to ban race preferences shows, there are lots of Democrats who are opposed to racial quotas and other race preferences.  Indeed, this would appear to be an issue in which the elites of both parties are out of step with significant portions of their party bases.


As for campaign-finance reform, it probably is the case that Republicans are much more inclined to oppose limits on spending than Democrats are, though I’m not sure when ardent defense of First Amendment principles (such as Justice Brennan applied in Buckley v. Valeo) became a partisan Republican or conservative issue. 


As for quote 2:  The charge that “this is the most activist Supreme Court we have ever seen” is too inane to call for a response.  Has Leahy been asleep for the past 40 years?  Also, Leahy’s charge that the error of Plessy v. Ferguson (in not striking down the segregation of railway cars) was “activist” shows that he doesn’t even understand his own epithet.


Less than six months ago, Senator Leahy defended the principle of judicial independence:  “It is most unfortunate that some in this country have chosen to use dangerous and irresponsible rhetoric when talking about judges.…  This high-pitched rhetoric should stop, for the sake of our judges and the independence of the Judiciary.”  Leahy’s own crude political attack on the Chief Justice and the Supreme Court is, admittedly, a few steps removed from the specific examples that he condemned, but it is nonetheless irresponsible, especially coming from a chairman of the Senate Judiciary Committee.

Let me be clear:  If Leahy wants to try to present a sustained, coherent criticism of Chief Justice Roberts and the Supreme Court, he should be welcome to do so.  But that’s a far cry from his reckless remarks to Politico. 

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