Topic: The Court Overruling Acts of Congress & Jurisprudence
Senator: Specter
Date: SEPTEMBER 14, 2005
Contents
SPECTER: Let me come now to the Americans with Disabilities Act. And you have 5-4 decisions going opposite way. Ms. Garrett had breast cancer. The court in 2001 said that the title of the Disabilities Act was unconstitutional 5-4. On employment, discrimination. And then, three years later, you have the case coming up of Lane, a paraplegic, rolling up the steps, accommodations, 5-4: the act was upheld.
The record in the case was very extensive: 13 congressional hearings; a task force had held hearings at every state attended by more than 30,000, including thousands who had experienced discrimination.
And in the Garrett case, the Supreme Court of the United States used a doctrine which had been in vogue only since 1997 in the Boerne case. You and I discussed this in my office. They came up with the standard of what is congruent and proportionate; congruence and proportionality.
I was interested in your statement, when we talked informally, that you didn't find those in the Fourteenth Amendment. I didn't either.
Now they plucked congruence and proportionately right out of thin air. And when Scalia dissented, he said that the congruence and proportionality test was a, quote, "flabby test," which is a, quote, "invitation to judicial arbitrariness by policy-driven decision- making."
Now, you said yesterday that you did not think that there was judicial activism when the court overruled an act of Congress. Isn't this congruence and proportionality test, which comes out of thin air, a classic example of judicial activism where the view of congruence -- hard to find a definition for congruence; proportionality, hard to find a definition for proportionality -- I've searched and can't find any.
SPECTER: Isn't that the very essence of what is in the eye of the beholder, where the court take carte blanche to declare acts of Congress unconstitutional?
ROBERTS: Well, these questions arise, of course, under, as you know, Section 5 of the Fourteenth Amendment, where the issue is Congress' power to address violations of the Fourteenth Amendment.
And it's an extraordinary grant of power. And the court has always recognized it as such.
And their decisions in recent years -- it's not just, as you point out, the Garrett case on the one hand and the Lane case on the other. You have the Hibbs case recently, which upheld Congress' exercise of authority.
The most recent cases, Lane and Hibbs, uphold Congress' exercise of authority to abrogate...
SPECTER: But, Judge Roberts, they uphold it at the pleasure of the court. Congress can't figure that out. There's no way we can tell what's congruent and proportional in the eyes of the court.
ROBERTS: Well, and that was Justice Scalia's position in dissent. He had originally...
SPECTER: Do you agree with Scalia?
ROBERTS: Well, again, this is -- the congruent and proportional test...
SPECTER: Do you disagree with Justice Scalia?
ROBERTS: I don't think it's appropriate, in an area...
(LAUGHTER)
... and there are cases coming up, as you know, Mr. Chairman. There's a case on the docket right now that considers the congruence and proportionality test.
SPECTER: That's why I'm raising it with you. I'd like to see a sensible interpretation with the court in that case.
ROBERTS: Well, and if I am confirmed and I do have to sit on that case, I would approach that with an open mind and consider the arguments.
I can't give you a commitment here today about how I will approach an issue that is going to be on the docket within a matter of months.
SPECTER: Judge Roberts, I'm not talking about an issue. I'm talking about the essence of jurisprudence. I'm talking about the essence of a man-, woman-made test in the Supreme Court which has no grounding in the Constitution, no grounding in the Federalist Papers, no grounding in the history of the country.
It comes out of thin air in 1997. And it's used in Lane and Garrett, two 5-4 decisions on identical records on an identical act, and the country and the Congress are supposed to figure out what the court means.
So I'm really talking about jurisprudence.
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