Topic: U.S. v. Morrison
Date: SEPTEMBER 14, 2005
SPECTER: On the record, in U.S. v. Morrison, the legislation to protect women against violence, the record showed that there were reports on gender bias from the task force in 21 states, and 8 separate reports issued by Congress and its committees over a long course of time leading to the enactment, and a characterization by the dissenters that there was a mountain of evidence.
What more does the Congress have to do to establish a record that will be respected by the court?
And this is where the five-person majority threw it over, not because of the record but because of the method of reasoning.
SPECTER: Isn't that record palpably sufficient to sustain the constitutionality of the act?
ROBERTS: Well, Mr. Chairman, I don't want to comment on the correctness or incorrectness of a particular decision. What I will say...
SPECTER: Well, Judge Roberts, let me interrupt you there for a minute. Why not? The case is over. This isn't a case which is likely to come before you again. These are the specific facts based on the rape of the woman -- alleged rape -- by the three VMI students.
I liked your answers yesterday. You were willing to answer more questions about cases on the differentiation that they are not likely to come before the court. This is not likely to come before the court again.
Isn't this record sufficient in Morrison to...
ROBERTS: Well, Mr. Chairman...
SPECTER: ... uphold the act?
ROBERTS: Mr. Chairman, I must respectfully disagree. I have been willing to comment on cases that I think are not likely to come before the court again. I think particular question you ask about the adequacy of findings and make a determination of the impact on interstate commerce is likely to come before the court again. And expressing an opinion on whether the Morrison case was correct or incorrect would be prejudging those cases that are likely to come before the court again.
And that is the line -- it's not just a line that I'm drawing, it's a line that, as I've read the transcripts, every nominee who's sitting on the court today drew. Some of them drew the line far more aggressively and wouldn't even comment on cases like Marbury v. Madison.
What I can tell you is that with respect to review of congressional findings that my view of the appropriate role of a judge is a limited role and that you do not make the law.
And it seems to me that one of the warning flags that should suggest to you as a judge that you may be beginning to transgress into the area of making a law is when you are in a position of re- evaluating legislative findings because that doesn't look like judicial function. It's not an application of analysis under the Constitution; it's just another look at findings.
ROBERTS: Now, again, I don't feel it's appropriate to comment on Morrison.
I do feel it's appropriate to tell you that I appreciate the differences between Congress and the courts with respect to findings, both with respect to the issue of the capability and competence to undertake that enterprise and also with respect to the issue of authority to make a decision based on the findings.
SPECTER: Judge Roberts, we'll have to agree to disagree about that. I don't think the facts of Morrison are likely to come before the court. But I ask the questions; you answer them.