Judging

In a thoughtful article appearing in the August 19, 2010 issue of the New York Review of Books, Ronald Dworkin writes about Elena Kagan and the hearing of her confirmation as the newest Justice to the United States Supreme Court.

As a law professor back in 1995 she wrote of such hearings as taking "on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public." Dworkin writes that her own hearings became just that, as she avoided answering any question with much specificity or substance. Since the Bork confirmation hearing in 1987 when said nominee was skewered, nominees have hewed to the same script: avoid controversy, answer generally, flatter opposing Senators, smile a lot, and play it safe.

Justices Roberts and Alito played that same game: smile, say little. After climbing toi the bench, they joined Justices Scalia and Thomas as a solid right-wing bloc, often getting Justice Kennedy's vote and deciding 5-4 to pursue a conservative agenda.

It is crucial to the role Supreme Court justices play in our constitutional system that they be free and able to reject popular opinion—to overrule the wishes of the majority in order to protect individual rights.

The Court is supposed to rule based on constitutional interpretation, not on individual philosophy. But what is proper constitutional interpretation?


the right-wing phalanx of the Court has used its power to overrule the will of the majority in what strikes many of us as an indefensible and dangerous way: not to protect a vulnerable minority from majority indifference or hatred but to protect conservative interests and privilege from progressive legislation.

Dworkin's politics and worldview are quite clear; I happen to agree with his judgment.

Richard Posner, himself a conservative judge, recently wrote that four of the five most conservative justices since 1937 are together on the Court now: Chief Justice Roberts and Justices Clarence Thomas, Antonin Scalia, and Samuel Alito. Many lawyers believe it would have been better had Roberts and Alito been forced to disclose their real substantive intentions in their hearings because they would not have been confirmed if they had.

Richard Posner is a judge, and a prolific author.


Posner said of Roberts: “The tension between what he said at his confirmation hearing and what he is doing as a Justice is a blow to Roberts’s reputation for candor and further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”

 That tension is, in fact, that he lied at his hearings, not admitting he went in with the agenda he has pursued as a Justice and as Chief Justice. It has been an agenda of overturning precedent conservatives disagree with, an activist agenda, indeed.

Pressed to address precedent, Kagan spoke of using pragmatism and not overarching philosophical view.

Her answer was almost identical to what Roberts and Alito said about precedent and once they were confirmed they joined the other conservative justices in an overruling spree unparalleled in Court history.


Justice Roberts, overruling a recent decision, said that that decision “actually impedes the stable and orderly adjudication of future cases.” He cited the fact that the conservative justices who dissented in the earlier case had continued to declare their opposition to it. If that is enough to justify overruling, no important precedent would be safe.

Pragmatism? or pursuit of an agenda?

Abortion rights continue to be denounced by Scalia and Thomas and continue to be hated by many millions of Americans. Does that make Roe v. Wade “unworkable”? Many of the Court’s recent abortion decisions—in overruling a recent decision in order to permit a ban on “partial-birth” abortion, for instance—might well be thought to “erode” Roe‘s “doctrinal foundations.” Does that make Roe itself ripe for overruling? (Much of the Roberts Court’s jurisprudence might be preparing for the day it does that.)

Who can doubt that overturning Roe v. Wade is a priority for the right wing?