Senator Charles Grassley (R-IA) believes we need a national debate about whether the current Supreme Court Justices are adhering to their constitutional role of interpreting the constitutional text. Are they publicly perceived as non-partisan oracles of wisdom and justice, or politically motivated appointees, committed to deliver decisions based on their personal and party’s policy preferences?
Grassley, Chairman of the Senate Judiciary Committee, explains the background for this suggested debate: “There are four Justices who vote in a liberal way in effectively every case the public follows. There are two Justices who stick to the constitutional text and vote in a consistently conservative way. One Justice votes mostly but not always in a conservative way. And one Justice votes sometimes with the conservatives and sometimes with the liberals.”
Like explaining a game of Clue, Grassley went on in his April 5th Floor Statement to note that “all of the liberals were appointed by Democrats. The conservatives and the swing Justices were appointed by Republicans.”
Grassley’s prepared remarks were in response, in part, to a speech by Chief Justice Roberts, shortly before Justice Scalia’s death, where he lamented a public perception that the Supreme Court is highly politicized. The Chief Justice said he believed this perception is caused by the “sharply divided political divisive hearing process” with new judicial appointees. This was prior to Justice Scalia’s death and the recent nomination of Judge Merrick Garland, by President Obama, to fill this vacancy.
Grassley, who has observed Washington D.C. practices from the Senate since 1981, responded in his chamber’s floor speech, saying, “the Chief Justice has it exactly backwards. The confirmation process doesn’t make the Justices appear political. The confirmation process has gotten political precisely because the Court has drifted from the constitutional text, and rendered decisions based instead on policy preferences.”
Becoming even bolder, Grassley confided that, “many of my constituents believe, with all due respect, that the Chief Justice is part of this problem. They believe that a number of his votes have reflected political considerations, not legal ones. And, certainly there are academics who agree.”
Court observers note that while many of the “lesser cases” are often decided unanimously, the “hot button” cases (dealing with freedom of religion, abortion, affirmative action, gun control, free speech, the death penalty, and others) have often been decided 5-4 in favor of the liberal side of the bench. Now, with Scalia gone from the “constitutionalist” camp, “hot button” cases decided by “politicians in robes” may further anger Americans, who believe the court is “no different from the political branches of government.”
The Judiciary Committee chairman suggests that “the law is no more or less likely to be clear in a “hot button” case than in other cases. For those Justices committed to the rule of law, it shouldn’t be any harder to keep personal preferences out of politically charged cases than others.”
Grassley, who has been in the Senate for nearly 35 years, believes it can not “be a coincidence” that in split decision after split decision “the Justices the Democrats appointed vote for liberal policy results,” regardless of what the law requires.
For the public to again believe that the Justices haven’t exceeded their constitutional role and that the U.S. Supreme Court again has integrity and is not politically rigged, the Justices must demonstrate their decisions are based on the Constitution and the law and not on their personal, political preferences.