Yesterday, the Supreme Court wrapped up its term by issuing a 5-4 decision that pulled the rug out from under Brown v. Board of Education, one of the most revered cases in the court's long history. The opinion, written by Chief Justice Roberts and joined by Justice Alito, clearly illustrated just how drastically the court's new composition has changed its jurisprudence. Although their supporters attempted to make Roberts and Alito look moderate during their confirmation battles, after watching two terms of the newly constituted Court, it is blatantly obvious just how sharply a turn it has taken to the right.
While the Chief Justice and Justice Alito have both been equally doctrinaire in their votes this term, the replacement of Sandra Day O'Connor with Justice Alito had a particularly profound impact on the Court. Casting the deciding vote on cases upholding many fundamental protections on which we've come to rely, Justice O'Connor was the bulwark against the more radical conservative flank of the Court. Now, after a mere 18 months, the swap of Alito for O'Connor has already managed to dismantle landmark decisions on issues like abortion, integration, Title VII, free speech, and the Establishment Clause.
Despite their intricate avoidance dances and repetition of rehearsed answers to important questions during their confirmation hearings, the pedantic conservatism Chief Justice Roberts and Justice Alito have brought to the high court should surprise no one. Their votes, their language, and their general approach to the law predictably track their pre-nomination records. Unfortunately, the havoc the two newest justices have wreaked on social progress and individual rights in this country is just the beginning. But they have already been confirmed to lifetime appointments, so instead of focusing on how misguided their supporters were, we should look to the future. Moving forward, senators and the public must not be fooled by the theatre of confirmation hearings. As it continues to consider Bush's judicial nominees, the Senate must take its "advice and consent" role seriously and refuse to confirm those whose records demonstrate hostility to progress, precedent, and equal justice under the law.
Alliance for Justice has compiled an end of term report not only contrasting the rhetoric Justices Alito and Roberts offered in their hearings versus the reality of what they've done on the bench, but also the impact they've had during the short time they've been on the bench.