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the Supreme Court held that the Justice Department lacked the power to undermine Oregon's Death With Dignity Act. However, Roberts joined a startling dissent by Justice Antonin Scalia, stating that the administration's actions were "unquestionably permissible" because the federal government can use the Constitution's commerce clause powers "for the purpose of protecting public morality."
It is difficult to believe that a neutral judicial philosophy explains Roberts's very different views in these two cases. He memorably claimed during the confirmation process that he wanted only to be a diligent umpire, calling balls and strikes without regard to what team was at bat. But it turns out that our new umpires have a keen interest in who wins and who loses.
One clear loser is the environment. In Rapanos v. United States , the court was asked to interpret the definition of wetlands under the Clean Water Act. Four justices deferred to the Army Corps of Engineers' expertise in implementing the statute. But Roberts and Alito joined an opinion that describes wetlands as "transitory puddles" and criticizes their colleagues for "giving that agency more deference than reason permits." For Roberts and Alito, protecting the environment - unlike "protecting public morality" - is clearly not a top priority.
Perhaps the biggest winner is the president himself. During Alito's hearing, I asked him about a 1985 job application in which he stated that he believed "very strongly in the supremacy of the elected branches of government." He backpedaled, claiming: "I certainly didn't mean that literally at the time, and I wouldn't say that today."
But he is willing to say it now. In the very recent case of Hamdan v. Rumsfeld , Alito signed on to a dissent by Justice Clarence Thomas that asserts a judicial "duty to accept the Executive's judgment in matters of military operations and foreign affairs" as grounds for allowing the administration to use military commissions of its own design to try detainees at Guantanamo Bay, Cuba.
This is part of a pattern. When he was in the Reagan Justice Department, Alito wrote in support of signing statements, through which the president has claimed to limit the scope of measures passed by Congress - including the ban on torture. When questioned about the legal status of such statements, he said it was an open issue that still needed to be "explored and resolved" by the court. But Alito joined a Scalia dissent in the Hamdan case that endorsed the use of signing statements without providing any analysis or legal support.
Similarly, Alito had a pattern of ruling against individuals in Fourth Amendment cases - including a case involving the strip-search of a 10-year-old girl. When questioned, he insisted that one of the judiciary's most important roles "is to stand up and defend the rights of people when they are violated." But Alito cast the deciding vote in Hudson v. Michigan , in which the court decided - contrary to almost a century of precedent - that evidence gathered during an unconstitutional search of a suspect's home could be used to convict him.
In the term that begins in October, the court will decide major cases on abortion, affirmative action and the Clean Air Act. Roberts and Alito may well cast the deciding votes. If their first term is any indication, their agenda will be exactly what many of us feared - and nothing like the judicial modesty they promised during their hearings.
At a time when great legal issues are being decided by the slimmest of margins, we cannot afford to learn nominees' views only after they have obtained lifetime tenure on our highest court. Instead, the Judiciary Committee, the Senate and the American Bar Association need to work together to return to an honest confirmation process. I support reform despite my belief that the next justice will be nominated by a Democratic president and be sent to a Democratic Senate for confirmation.
The discussion should start with a few truths. First, any qualified nominee to the Supreme Court will have spent many years thinking about legal issues. We should require that nominees share that thinking with the Judiciary Committee, and not pretend that such candor is tantamount to prejudging specific cases. In particular, the Senate should have the same access to the nominee's writings as the administration. Second, the Judiciary Committee will need to reorganize the way it asks questions. An in-depth inquiry will require something more than short rounds of questions that pass from senator to senator. Third, we need to remember what this process is all about.
It is good to hear that a nominee has a loving family, faithful friends and a sense of humor. It is important to know that nominees possess the intellect, life experience and discipline that make a good judge. But it is essential that we learn enough of their legal views to be certain that they will make good on the simple promise etched in marble outside the Supreme Court: "Equal Justice Under Law."
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