The Roberts Court: The Struggle for the Constitution (10 page)

A little more than a month before the Court acted on the Lynn petition, the wait for final word from the appellate courts in the Louisville and Seattle cases ended. The Sixth Circuit rejected Crystal Meredith’s motion for a rehearing and left in place its rather perfunctory approval of the Louisville school assignment plan. The Ninth Circuit handed the Seattle School District a hard-fought victory. Unlike the Sixth Circuit, the eleven judges on the Ninth Circuit, voting 7–4, issued lengthy majority and dissenting opinions.

The Ninth Circuit majority, applying the Supreme Court’s
Grutter
decision involving the race-conscious admissions policy at the University of Michigan Law School, concluded that the Seattle School District had a compelling interest in “securing the educational and social benefits of racial (and ethnic) diversity, and in ameliorating racial isolation or concentration in its high schools by ensuring its assignments do not simply replicate Seattle’s segregated housing patterns.”

The plan also was narrowly tailored to achieve its goal, according to the court. “In sum, because (1) the District is entitled to assign all students to any of its schools, (2) no student is entitled to attend any specific school and (3) the tiebreaker does not uniformly benefit any race or group of individuals to the detriment of another, the tiebreaker does not unduly harm any students in the District.”

One of the court’s most conservative judges, Alex Kozinski, surprisingly agreed that the plan was constitutional. He would not even have subjected the plan to strict scrutiny—the most searching examination under the Constitution—as the majority did. He said the plan did not suffer from any of the defects that other racial classifications by the government suffered.

“Through their elected officials, the people of Seattle have adopted a plan that emphasizes school choice, yet tempers such choice somewhat in order to ensure that the schools reflect the city’s population,” he wrote. “Such stirring of the melting pot strikes me as eminently sensible.”

Kozinski wrote that he hoped when the Supreme Court reviewed the Seattle plan or one like it, the justices would seriously consider not applying strict—“and almost deadly”—scrutiny. “Not only does a plan that promotes the mixing of the races deserve support rather than suspicion and hostility from the judiciary, but there is much to be said for returning primacy on matters of educational policy to local officials.”

Judge Carlos Bea was not convinced. In his dissent, he called the Seattle plan “simple racial balancing, which the Equal Protection Clause forbids.”

The only option remaining for the challengers to the Seattle and Louisville plans was to file a petition for review with the Supreme Court.

But when the Supreme Court in early December rejected the Lynn, Massachusetts, appeal, Michael Madden, attorney for the Seattle School District, thought, “naively,” that his opponents might not file a petition.

“I thought, hmmm, Lynn was a better Supreme Court case because it came up after a trial. It had a more complete record than ours,” he said later. “Our case was very stale and had an obvious mootness issue—the tiebreaker wasn’t being implemented.” He also remembered that the justices had declined to hear a Texas case involving a race-conscious admissions policy because the university had abandoned the policy.

“I naively thought Harry [Korrell, his opponent] might not waste his money [filing a petition]; or if he did, there was no reason to believe a different result. I didn’t factor in Alito.”
³

As the lawyers in the Seattle and Louisville school cases pondered their next moves, Samuel Alito Jr. prepared for the Senate Judiciary Committee hearing on his nomination to succeed Justice Sandra Day O’Connor on the Supreme Court.

While the Court, with O’Connor, worked through its docket that fall, the Senate hearings on Alito’s nomination were getting closer. Although President Bush had nominated Alito at the end of October 2005, Senate Judiciary chairman Arlen Specter said his committee needed time to comb through the large volume of work produced by Alito while on the federal appellate court. Unlike Roberts, who had written forty-nine opinions as an appellate judge during just two years on the District of Columbia Circuit court, Alito had spent fifteen years on the Third Circuit court and had written more than three hundred opinions.

Less than four months after the confirmation of John Roberts, the Judiciary Committee on January 9, 2006, opened its hearings into the nomination of Samuel Alito Jr. This time, however, Alito would endure more contentious questioning than Roberts did. This time the stakes were higher.

Senator Richard Durbin, Democrat from Illinois, described those high stakes before Alito even had the opportunity to make the traditional opening statement to the committee:

“You have heard time and again from my colleagues why this seat on the Supreme Court means so much. They have quoted the statistics of 193 5–4 decisions, where Sandra Day O’Connor was the deciding vote in 148 of those instances. She was a critical vote in issues of civil rights, human rights, workers’ rights, women’s rights, restraining the power of an overreaching President.

“If you look at the record, the enviable record which Sandra Day O’Connor has written, you find she was the fifth and decisive vote to safeguard Americans’ right to privacy, to require courtrooms to grant access to the disabled, to allow the Federal Government to pass laws to protect the environment, to preserve the right of universities to use affirmative action, to ban the execution of children in America. And Justice
O’Connor was the fifth vote to uphold the time-honored principle, which bears repeating, of separation of church and state . . . . We believe, many of us, that the decision on filling this vacancy is going to tip the scales of justice on the Supreme Court one way or the other.”
⁴

The physical contrast between Roberts, the private school–educated son of a midwestern steel executive, and Alito, the New Jersey public school–educated son of an Italian immigrant, could not have been greater. At his hearings, Roberts had looked trim, rested, youthful, and well dressed, and was polished in his delivery of answers to the questions—evidence of his experience as one of the preeminent appellate lawyers before the Supreme Court when he was in private practice. Alito appeared somewhat rumpled and he slouched slightly in his chair at the witness table. He answered often pointed questions in a dispassionate manner, never flustered or impatient. Despite the visible differences, he showed the same command of the law as Roberts did. Both men were products of Ivy League law schools: Roberts of Harvard; Alito of Yale.

By the end of three days and nearly eighteen hours of questioning, the committee’s Republican staff had compiled an informal tally of the questions: senators asked more than a hundred questions about abortion and one hundred twenty about presidential powers. There were also questions—but fewer—about race, women, disability rights, and voting rights. In all, Alito fielded more than seven hundred questions over the three days.

The focus on abortion stemmed not only from fears by Democrats and liberal groups that, with O’Connor off the Court, the landmark
Roe v. Wade
would be in even greater peril of being overruled. It also arose because of statements made by Alito in memos when he was a young lawyer in the Reagan administration—like Roberts—as well as in some of his judicial opinions.

In a job application to Attorney General Edwin Meese in 1985, when Alito was an assistant to the solicitor general in the Department of Justice, Alito, who was seeking a promotion at the time, wrote that he was
“particularly proud” of efforts he had made in cases before the Supreme Court in which the administration argued that racial and ethnic quotas were unconstitutional, and that “the Constitution does not protect a right to an abortion.” He said those were positions “I personally believe very strongly.”

As an appellate judge, he had dissented in a case in which his colleagues struck down Pennsylvania abortion restrictions, including one requiring married women to notify their husbands before getting an abortion. But in two other cases, he voted to strike down abortion restrictions.

During committee questioning, Alito repeatedly said
Roe v. Wade
was entitled to respect as a precedent of the Supreme Court, but, unlike Roberts, he refused to call it “settled law.” He conceded only that when a precedent is reaffirmed, “that strengthens the precedent,” and “special justification” would be required to overrule a precedent.

He also had written in his application to Meese that his interest in constitutional law was motivated largely by his disagreement with rulings by the Supreme Court under Chief Justice Earl Warren, particularly rulings dealing with “criminal procedure, the establishment clause and reapportionment.” That too triggered alarm bells for Democratic senators and liberal special interest groups. The Warren Court produced key rulings that, among others, required
Miranda
warnings before police questioned suspects, adopted the exclusionary rule for evidence illegally obtained by police, recognized a right to counsel for indigent criminal defendants, established the one-man, one-vote principle, and prohibited organized prayer in the public schools.

Alito did not disavow any of his early statements; but, again like Roberts, he explained them away as the views of a young lawyer in the Reagan administration, and, he added, “a great deal has happened in the case law since then.”

In his final day at the witness table, Alito faced a series of tough questions from Democratic senators about his views on executive power. Just a month before Alito’s hearings, President George W. Bush encountered
a firestorm of criticism following disclosures by the press that he had authorized the National Security Agency, without seeking court permission, to intercept international phone calls and other communications of people in the United States with known links to terrorists. Domestic electronic surveillance without a court warrant was made illegal by Congress in 1978.

In response to questions from Senator Russell Feingold, Democrat of Wisconsin, Alito said there could be times when a president violates a law because he believes, for example, that his powers as commander in chief trump the law; but, he added, “It would be a rare instance in which it would be justifiable for the president or any member of the executive branch not to abide by a statute passed by Congress.”

The one emotional moment in the hearings came not from Alito but from his wife, Martha-Ann. Some Democratic senators pressed Alito hard on his membership in Concerned Alumni of Princeton, an organization that opposed the admission of women and minorities to Princeton, Alito’s undergraduate alma mater. Alito had listed that membership—thirteen years after he left the university—on his 1985 job application in the Reagan Justice Department. The nominee repeatedly said he had no memory of membership in the group and he disavowed the group’s purpose.

When his round of questioning arrived, Senator Lindsey Graham, Republican of South Carolina, told Alito that he was sorry that the nominee was being treated so harshly by Democratic committee members. To settle the question of whether Alito was biased against women and minorities, Graham sympathetically asked, “Are you a bigot?” Alito answered, “I’m not any kind of bigot.” His wife, who was sitting behind her husband, began to cry and walked out of the hearing room.

In the end, what had the committee learned? Not much more than what Roberts was willing to reveal—knowledge of the Constitution, statutes, and Supreme Court rulings, but nothing of their own personal views.

Alito appeared to be much as everyone expected from his judicial
opinions and answers: a reliably conservative judge who, like Roberts, eschewed labels as to his judicial philosophy but made clear he would not call himself an originalist, like Justices Antonin Scalia and Clarence Thomas, in his approach to interpreting the Constitution.

That Alito and Roberts were so alike in their approaches and answers in the hearings should be no surprise given their coming of age as lawyers in the Reagan administration, said Professor John Yoo, a deputy assistant attorney general in the Department of Justice during the George W. Bush administration and author of the now infamous memo on the legality of torture in the interrogation of suspected terrorists.

“It shows the fruition of the Reagan-Meese approach of grooming young lawyers in the 1980s who could do well at hearings 20 years later,” he said in a
New York Times
interview in 2006.
⁵

On January 13, 2006, the hearings wrapped up with testimony by special interest groups, former clerks and associates of Alito, and legal scholars who supported or opposed his nomination. Alito emerged relatively unscathed and appeared headed for confirmation.

Five days later, on January 18, the parents who had lost their challenges to the Seattle and Louisville school assignment plans took their legal battle to the U.S. Supreme Court by filing separate petitions for review.

Although the Supreme Court generally finishes its work in each term by the end of June, the first term of the Roberts Court was coming to a close in a sense by the end of that January because of the confirmation of Alito and the departure of O’Connor.

After a failed attempt by some Democratic senators to filibuster his nomination, Alito was confirmed by a vote of 58–42 on January 31—the closest confirmation vote since the 52–48 vote for Clarence Thomas in 1991. Alito watched the Senate vote on his nomination with his wife and President Bush in the Roosevelt Room of the White House. Of the Senate’s fifty-five Republicans, only Senator Lincoln Chafee of Rhode Island, a moderate in a largely Democratic state, voted against Alito’s confirmation. Four Democrats, representing states that President Bush
carried in 2000 and 2004, crossed over party lines to support the nominee: West Virginia’s Robert Byrd, North Dakota’s Kent Conrad, South Dakota’s Tim Johnson, and Nebraska’s Ben Nelson.

Alito was sworn into office at the Supreme Court just hours after the vote. President Bush, in his memoirs, writes that later at the White House, he told Alito: “Sam, you ought to thank Harriet Miers for making this possible,” a reference to her withdrawal of her own nomination and her support of Alito. Alito responded: “Mr. President, you’re exactly right.”
⁶