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Copyright 2005 Associated Press
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Associated Press Worldstream
Headline: Passions Over U.S. Supreme Court Nominee Reflect Panel's Power
Source: The Associated Press
Byline: William C. Mann, AP Writer
Dateline: August 11, 2005 -- Washington, D.C.
If confirmed for the U.S. Supreme Court, Judge John Roberts will join a court with powers over Americans' lives that have stretched from middle America's bedrooms to the president's Oval Office.
Such power has given heartburn to some Americans who think the court, especially in the last half-century, has gone out of its way to find expansive new meanings in the Constitution's words and implications.
"I don't know if it is the most powerful court on Earth, but certainly it is the most powerful in terms of the role that it plays in government (compared with) many other countries," said Stephen Wermiel, an expert on the Supreme Court at the American University's Washington College of Law.
The United States, he said, is among the few places with a constitution that amounts to a broad set of principles in which details "need to be filled in by a set of judges. And then there are very few (other) places - if any - that rest that responsibility in an independent, unaccountable judiciary that has life tenure and doesn't really have to answer to the voters or to the other branches of government."
To serve on the court, Roberts needs the approval of the U.S. Senate, which begins hearings on his nomination Sept. 6. President George W. Bush had nominated Roberts in July to succeed the retiring Sandra Day O'Connor. If confirmed as the 117th justice, the 50-year-old appeals court judge could be expected to be on the Supreme Court for many years.
Many of the court's findings in recent decades have brought profound change to the lives of great numbers of Americans. Some have been met with resentment, anger, even violence. Justices have been accused of ignoring the writings of the Founding Fathers to follow political whims.
Last week, the third-ranking Republican in the Senate, Rick Santorum, said he wants Roberts to show he is "a judge and ... not the person who runs the United States government. That (he is) there to arbitrate disputes."
That is necessary to stop the Supreme Court's slide, Santorum said on National Public Radio, because "quietly, silently, they've become the final arbiter of everything."
It became the final arbiter two centuries ago when John Marshall, the third chief justice, said in an 1803 opinion that "a law repugnant to the Constitution is void." He also wrote: "It is emphatically the province and duty of the judicial department to say what the law is," establishing "judicial review" to allow the courts to determine when Congress and the president overstep limits of the Constitution.
In no other country, said Melvin I. Urofsky, constitutional history professor at Virginia Commonwealth University, is judicial review used as frequently as the Supreme Court does, and also unique is "the acceptance of that power by the people."
Some of those decisions have jarred American society.
The 1954 Brown v. Board of Education of Topeka ruling that ordered states not to have separate school systems for black and white children is one. Another is Roe v. Wade, in 1971, in which the court found a constitutional right for privacy that allowed a woman to abort a fetus. In 1962, the court said in Engel v. Vitale that schools violated the Constitution by having pupils recite prayers, as many schools did until then.
Those kinds of opinions distress conservatives like Santorum.
But many decisions have served conservatives well. The court allowed Bush to become president by blocking, in a 5-4 decision, further recounts of Florida's electoral ballots in 2002.
The court is often unpredictable. In 1986, a relatively liberal court ruled 5-4 that a Georgia law's ban on consensual sodomy in a person's own bedroom was constitutional; 17 years later, a more conservative court quashed a similar Texas law on a 6-3 vote and overturned the Georgia precedent.
Still, the Supreme Court retains the trust, and certainly the attention, of most Americans.
A CBS News poll found in mid-July, a week before Bush nominated Roberts, that 59 percent of Americans considered which justices sit on the court at least "very important" to them. Another 30 percent thought it was "somewhat important," which means almost nine in 10 Americans feel they have a personal stake in the nation's top judges.
That is evident in the run-up to the confirmation hearing.
Congress is in recess, but interest groups afraid Roberts might be insufficiently committed to civil rights are sponsoring television ads urging senators to scrutinize his record. Groups that want more conservative justices are warning Democratic senators up for re-election next year to expect heavy campaigning against them if they treat Roberts too harshly.
Yet it is hard to predict what kind of a justice Roberts would be. The court's history is replete with justices whose decisions veered wildly from what their records would have predicted.
Justice Anthony Kennedy, put on the bench by President Ronald Reagan and thought by the right to be reliably conservative, wrote the opinion for a 5-4 majority in a case that outlawed the execution of murderers who killed while younger than 18 years old. He based his opinion partly on international practices.
James Dobson, a preacher who founded the conservative group Focus on the Family, demanded that Kennedy and the other four members who voted with him be impeached. Kennedy, he said, had become "the most dangerous man in America." |
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