Court Monitor

Off-Court Statements by Alito and Roberts

The workload of a Supreme Court Justice is rapidly diminishing, as the number of new cases heard annually dips to only about 75. With nine Justices to divide up the work, this amounts to merely one court opinion per Justice per month. Moreover, these cases typically concern mundane issues far from the public interest. The Justices fill their extra time by making speeches to friendly audiences and writing articles or books. It is there, perhaps more so than in the court opinions, that the future direction of the Court can be gleaned.

The two appointees by President George W. Bush – John Roberts and Sam Alito – now have the most influence over the future direction of the Court. Both are fine legal scholars, and both are thought to be strong conservatives.

Justice Alito has shined in his off-court appearances, suggesting that he’s every bit as conservative as his supporters hoped. With a sharp wit, he has dismissed the demands by liberals for an evolving Constitution.

For example, Justice Alito declared in an appearance before the conservative-leaning Federalist Society that he has no plans to read the new books by these leading liberal law professors: Cass Sunstein and Laurence Tribe. “I’m going to have to stick to interpreting and applying the provisions of the Constitution that are visible to the naked eye.” Alito then added for the roaring crowd, “And I'm going to have to proceed on the assumption that these provisions have not taken on an entirely new meaning.”

Meanwhile, Chief Justice John Roberts, whom conservatives also hold in high regard, has been more circumspect in his public comments, in sharp contrast with his memos lampooning liberals when he was fresh out of law school. The Chief Justice seems quite comfortable with his many government titles; he also serves as the Chancellor of the Smithsonian and a trustee at the National Gallery of Art.

Chief Justice Roberts is currently writing a series of short essays about the Preamble to the Constitution for the Treasury Department, which it will issue along with a new set of platinum coins. Like Justice Alito, Chief Justice Roberts has addressed the Federalist Society, but his speeches focus on historical anecdotes that could not possibly spark contemporary debate.

The Preamble is the least controversial part of the Constitution, but even there Chief Justice Roberts’ writings strive for political correctness. For example, he argues that the phrase a “more perfect union” does not reflect the common English heritage and language of the vast majority of the colonists and nearly all of the Founders. Instead, according to Roberts, it rests “more fundamentally on a unity of common beliefs that Americans of all backgrounds throughout history have embraced.” There, in a nutshell, is Roberts’ quest for unanimous consent. It explains why he agrees to dilute his opinions, even when he has a majority, in order to pick up liberal support.

Roberts and Alito: closely aligned on principle, but worlds apart in style. Together they will lead the Court for an entire generation.


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