Most questions senators are asking the first US Supreme Court nominee in 11 years follow predictable partisan scripts. But a new theme is surfacing in the confirmation hearings for John Roberts, and it's coming from those in both parties: a concern that courts are usurping the role of legislators, especially the US Congress.
For Senate Judiciary Committee chairman Arlen Specter, it's personal. He didn't appreciate the Rehnquist court's decision to overturn a provision of the 1994 Violence Against Women Act, a law he helped to draft.
"The next chief justice will have the potential to change the court's image, in the eyes of many, as a superlegislature and to bring consensus to the court, which has made a hallmark of 5-4 decisions, many of which are inexplicable," he said Monday as the hearings opened.
Judge Roberts is the first high-court nominee to face senators since the Rehnquist court decided a series of federalism cases, beginning in 1995, that have reined in more than three dozen federal statutes. Senators want to know if Roberts, who once clerked for the former chief justice, will follow Rehnquist's lead.
More than just a venue for deciding who gets to sit on the court, hearings are also a chance for a dialogue between institutions that rarely talk, though they sit across a park from each other.
"It's a very pointed message in a very public forum to someone about to assume the most important seat on the court," says Ross Baker, a political scientist at Rutgers University in New Brunswick, N.J. "Whether he heeds it or not, Roberts can't be indifferent that the Senate is upset about the Supreme Court usurping the functions of Congress, second guessing them, and belittling their reasoning."
Sen. Mike DeWine (R) of Ohio told Roberts Monday that the Supreme Court is "unmaking" the US Constitution. "Many fear that our court is making policy, when it repeatedly strikes down laws passed by Congress and the state legislature," he said, citing laws protecting the aged, the disabled, and women who are the victims of violence.
GOP Sen. John Cornyn of Texas blasted the "ideal of the Supreme Court as a sort of superlegislature." Sen. Sam Brownback (R) of Kansas, a leading conservative and potential presidential candidate in 2008, told Roberts that "constitutionalists from Hamilton to Frankfurter surely would be shocked at the broad sweep of judicial activity today."
Democrats struck similar themes.
Sen. Dianne Feinstein (D) of California, one of five Democrats who voted for Roberts for confirmation to the Fourth Circuit Court of Appeals in 2003, challenged the Rehnquist court's restrictive interpretation of the Constitution, which would limit the role of Congress. "If you, Judge Roberts, subscribe to the Rehnquist court's restrictive interpretation of Congress's ability to legislate, the impact could be to severely restrict the ability of Congress to tackle nationwide issues that the American people have elected us to address."
At issue is whether the Constitution, especially the commerce clause, permits Congress to extend its regulatory reach. While Republicans and Democrats both say they oppose "judicial activism," there is little agreement, even within parties, on what the term means.
"It's highly ironic that it was the conservatives on the court who overturned so many statutes," says Jonathan Turley, a constitutional law professor at George Washington University Law School.
"The other irony is that Roberts is a lifelong advocate of federalism and states' rights. Like his mentor, Rehnquist, he has a narrow view of the commerce clause."
In the first round of questioning Tuesday, Roberts gave a nuanced answer to questions about judicial activism. He described overturning acts of Congress as "the gravest and most delicate duty" the court performs. "Millions and millions of people have voted for you, and no one has voted for us.... We have to limit ourselves to applying the law," he said.
But Roberts did not back off from the view that the high court has a right - and a responsibility - to overturn acts of Congress that the court determines to be unconstitutional. "If the court strikes down an act of Congress and it's wrong, that's not an act of judicial activism, it's just wrong," he said, in response to a question from Sen. Orrin Hatch (R) of Utah, another sponsor of the Violence Against Women Act.
In 2000, the Supreme Court ruled 5-to-4 that part of that law was unconstitutional because it exceeded Congress's authority to pass legislation under Article 1, Section 8 of the Constitution, which empowers Congress to "regulate commerce ... among the several states." More than 700 laws, on a wide range of issues, explicitly refer to either "interstate" or "foreign" commerce, according to the Congressional Research Service.
In a 2003 case, Rancho Viejo v. Norton, Roberts used the same reasoning to dissent from his colleagues on the Fourth Circuit, a majority of whom denied a rehearing on a ruling that protected endangered arroyo toads in California. "The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'commerce ... among the several states,' " he wrote.
If confirmed, Roberts would hear his first federalism case as chief justice on Oct. 5, when the high court takes up whether federal antidrug laws trump Oregon's physician-assisted suicide statute.