The idea for a review came to Specter when he said he ran into Justice Stephen G. Breyer at the Aspen Ideas Festival in Colorado.This "review" is a fool's errand and quite frankly more damaging to the legal system and the power of the Supreme Court than anything Congress could possibly do.
Breyer, an appointee of President Bill Clinton, drew attention last month for suggesting that Roberts and the conservative majority were flouting stare decisis, the legal doctrine that, for the sake of stability, courts should generally leave past decisions undisturbed.
"It is not often in the law that so few have so quickly changed so much," Breyer said, reading his dissent from the bench to a 5-4 ruling that overturned school desegregation policies in two cities.
Roberts has defended his rulings as applications of "existing precedent."
Specter, however, said Breyer's statement was "an especially forceful criticism of the Roberts court."
"I only noticed it in a couple of cases," Specter said of the court overturning or undermining precedents. But Breyer, in their Aspen conversation, said "there were eight."
Those that have earned the most criticism from liberals were rulings that struck down desegregation programs, upheld a federal law prohibiting late-term abortions and weakened restrictions on broadcast ads during campaigns.
It is important to note that Specter's review is certainly within his purview as a Senator, but it is highly impolitic to publicly undertake such a query. The fact that Roberts and Alito spoke of respect of the stare decisis doctrine cannot undermine their duty to decide the cases in a manner dicated by the facts and the law. Each case is different and the Court cannot rigidly apply precedent just because the cases are similar. Often decisions are based upon a view of the evidence and facts. For example, the Bong Hits 4 Jesus case could have come out very differently if the court interpreted the event where the irreverant sign was displayed had not been a school sponsored event.
However, this legislative inquiry undermines the Court's autonomy. In reality there is very little force, other than traditional respect for the Court's rulings, that the Supreme Court can apply to ensure its decisions are followed. The Court has no independent police power to enforce its decisions. This kind of inquiry undermines the judicial independence and respect for the Judiciary that remains key to the Court's efficacy. The Specter inquiry leads the public to distrust what the Court is doing and that public trust is important. Even if one disagrees with the Court's ruling, there can be no question about the Court's motives and methods.
The Justices know that their writings and opinions will be closely parsed for meaning, nuance and agenda. Justices also have views that change, often with the facts of a case, and often over time. Yes, Justice Roberts and Alito have not been on the Court for long, but to parse their prior testimone simply because you don't like their decisions undermines their positions, undermines their honor and undermines the public faith in the Court.
Having said that though, I do believe the Senate has a responsibility to critically examine the manner in which confirmation hearings are held. Right now they are more of a media circus than a critical attempt to probe the nominee's fitness for the job. The Senate Judiciary Committee does far more grandstanding than actual inquiry. The questions are more politically motivated, an attempt to score points among one's base, than they should be. A confirmation hearing is supposed to be like a panel job interview, compounded by TV cameras. The Judiciary Committee knows that no nominee is going to talk about hypotheticals or current cases. No nominee is going to say they don't respect precedent and no nominee worthy of sitting on a federal court is going to admit that they won't treat each as it comes across their bench with the due deference of a unique case. The Committee should look much harder at whether a person is qualified for the job, not whether their political views match their own.
Senator Spector, I urge you to refrain from this inquiry. If you truly love the Court, you must leave this alone.