The sun rose again today. The sky is still blue. Politicians are still weasels. And Erwin Chemerinsky is still being dishonest on the pages of the Los Angeles Times:
THE SUPREME COURT term that ended Thursday confirmed exactly what many people had feared: that the testimony given by John Roberts and Samuel Alito at their confirmation hearings just months earlier was a lot of baloney.
During those hearings, the two presented themselves as open-minded jurists lacking an ideological agenda. Roberts likened a Supreme Court justice to an umpire, a neutral arbiter whose personal political views are irrelevant to decisions. Both Roberts and Alito promised fidelity to the court’s precedents.
But instead, Chief Justice Roberts and Justice Alito have behaved exactly as their opponents predicted. There was not one case this term in which the court was not ideologically divided, and not one in which Roberts and Alito did not vote for the result that their conservative backers would have wanted. In virtually all of these cases, they were joined by justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.
Chemerinsky is saying that Alito and Roberts dissembled, even lied, in their confirmation hearings. This would be a serious accusation — if it came from a serious person. But Chemerinsky is not a serious person.
Hey, Erwin! What you apparently fail to realize is that not everyone is an ideological hack like you. The conservative justices have a principled view of what the Constitution means, and they have voted according to those principles. They follow principles of judicial conservatism, not political conservatism — and they never promised anything different.
The disconnect between Erwin’s Reality and Actual Reality is at its starkest when he claims:
At their confirmation hearings, both Roberts and Alito presented themselves as compassionate, insisting that they would not ignore the needs and rights of the powerless.
Chemerinsky proceeds to tick off cases where he complains that the powerless lost. Chemerinsky offers no legal argument that any of the cases was wrongly decided. His complaint is simply that the powerless lost. By submitting these arguments as “proof” of the Justices’ alleged dissembling, Erwin implies that Justice Roberts and Justice Alito promised to uphold the “needs and rights of the powerless” in any given case, regardless of the law.
This is arrant nonsense, as Erwin well knows. What Justices Roberts and Alito promised was to uphold the law, regardless of whether the law went for or against the powerless. Don’t believe me? That’s why we have transcripts. From Roberts’s confirmation hearings:
ROBERTS: I had someone ask me in this process — I don’t remember who it was, but somebody asked me, you know, “Are you going to be on the side of the little guy?”
And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution. That’s the oath.
The oath that a judge takes is not that, “I’ll look out for particular interests, I’ll be on the side of particular interests.” The oath is to uphold the Constitution and laws of the United States. And that’s what I would do.
That’s pretty clear, isn’t it, Erwin? And Justice Alito said much the same thing:
ALITO: Every person has equal rights under the law in this country, and that involves includes people have no money, that includes people who do not hold any higher or prestigious position, it includes people who are citizens and people who are not citizens.
Everybody is entitled to be treated equally under the law. And I think that’s one of the greatest things about our country and about our legal system.
That’s not a promise to uphold the needs of the powerless. It’s a promise to treat them equally under the law.
Moreover, Roberts’s and Alito’s promise to show appropriate respect for precedent does not mean that they promised to uphold every previous decision, regardless of its fidelity to the Constitution. Chemerinsky cites changes to precedents on partial-birth abortion, campaign finance reform, and forced integration — but each of these changes brought the Court in line with the Constitution and the precedents that have properly applied it.
Chemerinsky’s piece establishes one thing, and one thing only: that it’s impossible for a hack like him to understand people who are motivated by principles unrelated to political ideology.