Senator Whitehouse, a Democrat from Rhode Island with experience as his State’s Attorney General and as the United States Attorney for Rhode Island as well, uses his questioning of Elena Kagan to launch a tough attack on the current Supreme Court.
His contention: Justices “with a particular mission and are selectively knocking out precedent that does not coincide with their ideological views.”
Whitehouse begins by asking Kagan to talk about whether precedent (legalspeak for a court’s prior decisions) plays an institutional role by restricting the Court’s power. She agrees that precedent is “a doctrine of constraint” that “ensures courts will decide every case on the law” and a “doctrine of humility,” because a Justice who believes that the prior rulings are wrong cannot simply substitute her view for the accummulated wisdom of prior Justices.” And precedent is a check on the Court itself: the Justices have not been elected and they have no political accountability for their decisions; the principal of respecting precedent imposes a constraint on the Court.”
Whitehouse then goes on to point out that the decision in Brown v. Board of Education, which overruled a prior Court ruling, was unanimous. And the decision in Roe v. Wade was 7-2. In both cases, he says, nominees of Republican Presidents and Democratic Presidents joined the majority opinion.
Whitehouse contrasts those decisions with some recent rulings of the Court: Leegin (which overruled an antitrust precedent long targeted by the business community); Heller (the Second Amendment case); and Citizens United (the campaign finance case). In each of these cases, the Court overruled precedents by a 5-4 vote with the majority made up solely of Members of the Court nominated by Republican Presidents. He asks whether that is good for the Court, or whether the majority instead should have framed its ruling more narrowly in order to have attracted more support on the Court.
Kagan makes clear that she is not going to criticize the current Court. She does say that “there is no question that the court is served best and our country is served best when people trust the Court as an entirely nonpolitical body. When people look to the Court as doing what we know it ought to be doing.”
Should a majority frame its ruling more narrowly in order to attract more support? “Narrower decisions enable consensus to a greater degree,” which is a “benefit for the judicial process and for the country as a whole.”
And she says that a judge should not think “over the long haul I want to move the law in this direction” but rather “take one case at a time.”
This line of questioning not only demonstrates the significant antipathy that many Democrats in Congress have for the current Court; it shows their increasing willingness to present that critique publicly and to seek to frame the Members appointed by Republicans as the “real judicial activitists.”