As I discussed immediately below, Democrats on the Senate Judiciary Committee tried to use the hearings over Elena Kagan’s nomination to attack the “Roberts Court” as activist.
However, Jonathan Adler, at the Volokh Conspiracy, argues that the Roberts Court remains, by and large, “minimalist,” rather than activist. Adler writes:
As a general rule, this remains a court that tends to rule narrowly, and this is largely because the Chief Justice, Justice Alito, and sometimes Justice Kennedy have a preference for narrower rulings and smaller steps. But narrow rulings are not always possible. Sometimes the legal questions cannot be neatly divided. In such cases I think the Chief Justice has shown a willingness to stretch the law in order to decide a case narrowly, as occurred in the NAMUDNO voting rights case, so long as such a holding will unify the Court. Where a strained, narrow ruling will not unify the Court, however, he will opt for what he sees as the more correct holding instead of adopting a narrower holding for a narrower holding’s sake. Citizens United is a case in point, for while there were ways in which the case could have been decided on narrower grounds, the dissent made quite clear the decision would have remained 5-4.
Tom Goldstein, who comes at these matters from a different ideological stance, makes a similar argument at the SCOTUSBlog. Tom shows in detail that “the conservatives [on the Court] have not been aggressively ideological in applying the power that comes with their majority.” He also demonstrates that “the liberal critique of the Court as grossly pro-corporate similarly does not hold water.”
It’s not difficult to understand why the Senate Democrats used the Kagan hearings to attack the Roberts Court. First, doing so helped divert attention from the nominee’s problems — e.g., her lack of relevant experience; her mistreatment of the military at Harvard; and her attempt as a political operative in the Clinton administration to influence scientific findings that were passed off as pristine in the partial birth abortion case.
Second, doing so is consistent with the larger effort of Democrats to demonize conservatives on the Court. If President Obama sees fit to use the State of the Union address to attack the Court, one can hardly expect Senate Dems to forebear during confirmation hearings.
Whether this was a savvy move is another question. Senate Democrats are so unpopular now that their attacks on a more popular branch are likely to be counter-productive. Moreover, most of those willing to devote time to watching these hearings are probably sophisticated enough to sense what Adler (from the right) and Goldstein (from the left) have spelled out — the Dems’ portrayal of the Roberts Court doesn’t withstand scrutiny. Certainly, any reasonable observer who stuck with the hearings long enough to hear the testimony of Robert Alt and Ed Whelan could hardly conclude otherwise.