The Supreme Court
and a new Chief Justice

by Alan Shapiro

To the Teacher:

The sudden opening of two positions on the Supreme Court offers a teachable moment: What is the role of the court in American life? This reading focuses on the nomination of Judge John G. Roberts, Jr. to the position of chief justice. It considers some of the major issues on which he is likely to be questioned in his confirmation hearings and provides historical background on the court and detail on the difficulties of interpreting the constitution.

Student Reading, Part One:
Supreme Court Powers and the Nomination of Judge Roberts

Jane Roe, pregnant, unmarried, and living in Texas, wanted to have an abortion. Under Texas law, the only way she could have one legally was if her life was in jeopardy. But it was not. She went to county court and filed a "class action" lawsuit. ("Class action" means that the lawsuit was on behalf of all women facing similar situations.)

Ultimately, after rulings by lower courts and appeals, Roe v. Wade reached the Supreme Court. (Wade was the district attorney in the Texas county where Roe lived.) The nation's highest court accepted her petition to have her case heard. In 1973 the Supreme Court determined that under the personal privacy provisions of the Fourteenth Amendment to the Constitution, she could not be denied her right to have an abortion.

With that single decision protecting women's right to abortion, the U.S. Supreme Court changed history and affected the lives of all Americans. The Supreme Court's power extends beyond making judgments on lower court rulings. The nine justices also have the power to affirm congressional legislationóor strike it down as unconstitutional. In 1990, for example, the court declared the Flag Protection Act unconstitutional. This act had banned the burning of the American flag on the grounds that it violated the First Amendment's guarantee of freedom of speech. Burning the flag, the court determined, was a symbolic, political act that has the power of speech.

The president nominates individuals to become justices, as well as chief justice, of the Supreme Court. Of course, the president also names many other officialsócabinet members, ambassadors, the chief of staff for all the military services. But there is a big difference between all these appointees and the president's Supreme Court appointees: The president can't fire a justice of the Supreme Court. Once the full Senate approves the president's nominee for the court, the person takes office for life or until he or she decides to retire. Under the constitution, a high court justice can only be removed if he or she is impeached and convicted of "treason, bribery, or other high crimes and misdemeanors." (Article II, Section 2)

Because of this lifetime appointment and the Supreme Court's enormous influence in society, appointing a Supreme Court justice is one of the president's greatest powers. Currently President Bush is in a position to add two new members to the court, including the chief justice.

On July 19, 2005, President Bush nominated John G. Roberts, Jr., 50, as his first appointment to the Supreme Court following the retirement of Justice Sandra Day O'Connor. Six weeks later, before Roberts' confirmation hearings took place, Chief Justice William Rehnquist died, and Roberts was named by the president to take his place. The president must now also nominate someone to fill O'Connor's "associate justice" position.

Roberts' relative youth means he could well be on the court for several decades. And the position is an influential one. The chief justice's role has developed over the 20th century to include not only considering and voting on cases like the other justices, but also:

• presiding over twice-weekly private court conferences
• selecting which justice will write a particular decision
• reporting on the annual "state of the judiciary"
• presiding over some 2,000 federal judges and the judicial branch itself, which includes a staff of 30,000
• choosing members of important policy-making judicial committees and of specialized courts
• leading a group of judges who make policy for federal courts and present the judiciary's views to Congress.
  

Roberts graduated, magna cum laude (the highest honors), from the Harvard Law School. As a lawyer in private practice, he argued 39 cases before the Supreme Court. Roberts has held a number of governmental positions: law clerk to Chief Justice Rehnquist; special assistant to the attorney general and associate counsel to the president during the Reagan administration; principal deputy solicitor general in the U.S. Justice Department in the administration of President Bush's father; judge on the U.S. Court of Appeals for the Washington D.C. circuit.

Student Reading, Part Two:
Some Key Issues in the Roberts' Confirmation Hearing

The constitution requires that the Senate provide "advice and consent" for a president's Supreme Court appointees (Article II, Section 2).

Roberts' confirmation hearings before the Senate Judiciary Committee began on September 12. The Senators will question Roberts in detail about advisory memorandums he wrote as a government official, his public statements before the Supreme Court and elsewhere, and his views on the role of justices and a number of constitutional issues. Below are some of the issues likely to come up during the hearings:

ï Access to legal memorandums Roberts wrote as the principal deputy solicitor general under the first President Bush

Democratic senators and advocacy groups say the committee members should be able to view what Roberts wrote as part of his work on 16 cases during his tenure as the first President Bush's deputy solicitor general. They argue that the memorandums may contain critical information about Roberts' positions on civil rights, privacy rights, the right to abortion and freedom of religion.

Up to the confirmation hearings, the Bush administration refused to release these memoranda to Judiciary Committee members because they contained private advice to the president. If they were to be made public, it would have a chilling effect on the willingness of White House lawyers and advisors in the future to give the president their opinions.

Senator Edward Kennedy, a judiciary committee member and a Democrat, argued in the Washington Post (8/19/05) that as deputy solicitor general, "Roberts represented all the people of the United States, and the people are entitled to access his records from that time. The White House knows his positions, yet it continues to withhold documents that would help us understand his views of key fundamental rights and freedoms." Kennedy and others also point out that when Justice Rehnquist was nominated by President Nixon to be chief justice, similar records from his work as a Nixon administration lawyer were released to the Judiciary Committee. (New York Times, 9/8/05)

ï Roberts' views and possible conflict of interest in the Hamdan case

Salim Ahmad Hamdan, an American prisoner at Guantanamo Bay, is charged with war crimes as an "enemy combatant," a term created by the Bush administration. He admits he was Osama bin Laden's driver but says he never belonged to Al-Qaeda or fought against American troops in Afghanistan. The Bush administration wants to try him before a military commission that will deny him and his lawyer such "due process" rights as having access to all of the evidence against him.

Hamdan's lawyer Neal Katyal, a law professor at Georgetown University, has argued that a trial by military commission would strip U.S. prisoners like Hamdan of their rights as prisoners of war under the Geneva Conventions. The president counters that Hamdan and others like him aren't prisoners of war, but "enemy combatants," and so aren't protected by the Geneva Conventions.

Katyal also maintains that trying Hamdan by military commission violates provisions of the Convention Against Torture, an international treaty signed by the U.S. And Article VI of the U.S. Constitution which states that "Öall Treaties made, or which shall be made, under the Authority of the United States shall be the supreme law of the land." Katyal appealed the Bush administration decision to the U.S. Court of Appeals for the Washington D.C. circuit.

Roberts is one of three judges on the appeals court that considered the Hamdan case. Roberts heard the case during the same period when he was being interviewed for the Supreme Court position by Bush's Attorney General Alberto Gonzales and Vice President Dick Cheney. The three appeals court judges, ruling against Hamdan, supported presidential power and in favor of military commission trials four days before the president announced Roberts' Supreme Court nomination.

Katyal did not know that Roberts was doing job interviews with the Bush administration while hearing the case. Three legal ethicists in the online publication Slate wrote that the interviews violated the principle that judges should recuse themselves, or step aside from a case, if their "impartiality might reasonably be questioned."

The Nation asked, "Does anyone really think that on July 19 Bush would have introduced Roberts as his nominee if four days earlier he had voted the other way?" (9/19/05)

ï Roberts' views on Roe v. Wade

During his work for the first President Bush, Roberts signed the administration's brief to the Supreme Court on an abortion-related issue: Roberts backed the Bush administration's policy forbidding government-funded family planning clinics from providing patients with any information about abortion.

The brief in Rust v. Sullivan stated: "We continue to believe that Roe was wrongly decided and should be overruledÖ.The Court's conclusion in Roe that there is a fundamental right to abortionÖfinds no support in the text, structure, or history of the Constitution." The court ruled in favor of the government's regulation.

In 1993, Roberts presented a brief for the government in the Bray v. Alexandria Women's Health Clinic case to the Supreme Court. The brief supported the right of Operation Rescue, a militant anti-abortion group, to physically block clinics providing abortions. The abortion providers accused the group of violating a federal civil rights law in their actions. The court upheld the government's position.

But Roberts also said during the confirmation hearings in 2003 to become an appeals court judge, "Roe v. Wade is the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

In the briefs he prepared for the first Bush administration, was Roberts simply representing the president's views? Or was he also arguing his own beliefs about the constitutional right to abortion?

The court decision in Roe v. Wade is despised by many of Bush's conservative supporters and "right-to-life" groups. Liberal groups support strongly "a woman's right to choose."

ï "Judicial activism" versus "strict constructionism" or originalism

Conservative critics accuse some judges of "judicial activism"óthat is, making judicial decisions that really reflect the judge's personal politics, not the merits of the case. These conservatives prefer what they term "strict constructionism" or originalism: judicial decisions based on what conservatives regard as a proper reading of the Constitutionóone that conforms strictly to how it is constructed. Supreme Court Justice Antonin Scalia describes this as the original and fixed constitutional meaning.

But what is a proper reading of the Constitution? In the Supreme Court case Plessy v. Ferguson in 1896, the court considered the case of an African-American man who was denied the right to sit in the same railway car as white people. Justice Brown, writing for the 8-1 majority, ruled against the plaintiff, Homer Adolph Plessy, who had been arrested for refusing to ride in the "colored" coach. The court took the position that it was reasonable to read the Fourteenth Amendment's guarantee of "the equal protection of the law" as meaning "separate but equal," although, in fact, "separate" for African-Americans usually meant "unequal."

Fifty-eight years later, in 1954, the Supreme Court ruled 9-0 quite differently in a Kansas school segregation case, Brown v. Board of Education of Topeka, Kansas: "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." The "equal protection of the law" now meant the opposite of what the court had declared it meant in 1896.

There are many other words and phrases beside "equal protection of the law" that raise problems of interpretation, and about which the justices often disagree. Many significant votes in the Rehnquist court, for example, were 5-4.

The Constitution is a document guiding the country centuries after it was written. But justices have always interpreted it. For example, in the early days of the republic, in 1803, the court determined in Marbury v. Madison, a landmark case, that it had the authority to rule on the constitutionality of congressional legislation. But the Constitution does not specifically give the court such authority. In 1990, the court interpreted the First Amendment to protect flag-burning as a form of free speech. In 1962, the court decided that the First Amendment's forbidding of an "establishment of religion" meant that school prayer is unconstitutional. All these decisions reflect interpretations of the Constitution.

Senators on the Judiciary Committee will ask Roberts questions about his interpretation of major constitutional words and phrases. The Judiciary Committee Chairman, Senator Arlen Spector (Republican, PA), wants to question Roberts about his views on Congress's role. In recent years, the court has constricted Congressional authority in such areas as antigun laws and civil rights for disabled people. In a 2001 ruling, Chief Justice William Rehnquist questioned Congress's fact-finding ability and its "method of reasoning." Specter wants to know how Roberts views the high court's "really disrespectful statements about Congress's incompetence."

"The one thing we're quite unified about is that the nominee has to answer questions and give us facts about not only his resume but about his judicial philosophy and his views," said Senator Charles E. Schumer (Democrat, NY).

Chief Justice Rehnquist was regarded as a conservative. So is Roberts. It is possible that for this reason Roberts will have an easier time in his confirmation hearings than was earlier expected. The president's new nominee for the position occupied until recently by Sandra Day O'Connor, a swing voter on a number of key 5-4 court decisions, is likely to have more strenuous hearings, for the philosophy of this nominee might either maintain or tip the balance in future votes.

For discussion

1. Should the president release John Roberts' memorandums? Why or why not?

2. Did Roberts have a conflict of interest when he participated as a judge in the Hamdan case at the same time that he was being interviewed by the Bush administration for a position on the Supreme Court? Why or why not?

3. Do you think Roberts would see the "right to life" position against Roe v. Wade as constitutional? How about the "right to choose" position in favor of Roe v. Wade?

4. What problems of interpretation does the Constitution present to Supreme Court justices? Examine the Bill of Rights. What words and phrases other than those discussed in the reading present such problems?

Fish bowl

Select a half dozen students to respond to the following questions: Should John Roberts be confirmed as chief justice of the Supreme Court? Why or why not? Try to select students who represent different points of view.

Ask these students to arrange their chairs in a circle within a larger circle formed by the rest of the class. Fish bowl students should have the opportunity, in turn, to discuss their views and the reasons for them as concisely as possible. After everyone has spoken, the teacher might ask the group for any clarifying questions and student responses to them. Students outside the fish bowl are to listen closely, and after about 15 minutes can, if they wish, tap a fish bowl student on the shoulder and take his or her place.

Afterwards, especially if this is the class' first experience with this type of group discussion, you might ask students for feedback on how this technique worked for them.

For further investigation

For additional inquiries into the work of the Supreme Court, see its website, www.supremecourtus.gov.

This essay was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

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