- The Washington Times - Tuesday, March 29, 2011

During their five-plus years on the bench, the Supreme Court nominees of President George W. Bush have begun making their marks in cases involving gun rights, freedom of speech and campaign finance.

Chief Justice John G. Roberts Jr. and Justice Samuel Anthony Alito Jr. have settled into roles as mainstays of the high court’s conservative wing and frequently find themselves in agreement on legal issues, much to the delight of conservative commentators and observers and the chagrin of their liberal counterparts.

“Justices Roberts and Alito favor an incremental approach to the development of the law,” said Robert Hume, a political science professor at Fordham University in New York. “Roberts and Alito show more deference to precedent than the two archconservatives on the Supreme Court, Justices [Antonin] Scalia and [Clarence] Thomas.”

Jordan Sekulow, of the conservative American Center for Law and Justice, was effusive in his praise of Chief Justice Roberts and Justice Alito, saying they are exactly the types of justices that his group hoped they would be. He is hopeful that their influence will extend beyond the bench.

“I think they’re good examples for younger attorneys,” he said of the justices, who were seated within about four months of each other in late 2005 and early 2006.

But Geoffrey Stone, chairman of the board of the progressive American Constitution Society, was critical of both justices. “When their deeply conservative values lead Roberts and Alito strongly to a particular result, they do not let precedent, judicial restraint or originalism stand in their way,” he said.

Among the cases that have divided opinions about the two justices are two landmark gun-rights cases in which Chief Justice Roberts and Justice Alito were part of 5-4 majorities that in 2008 struck down the District of Columbia’s near-total ban on handguns and eliminated a similar ban in Chicago two years later.

In perhaps the most notable — not to mention contentious — decisions of their tenures on the court, Chief Justice Roberts and Justice Alito were once again part of a 5-4 majority that struck down on free-speech grounds limits on corporate and union spending in elections.

That decision drew criticism from high-ranking Democrats, including President Obama, who lashed out against the Roberts-led court during his 2010 State of the Union address. Mr. Obama said the decision opened the door for campaign contributions from foreign corporations.

‘Not true’

That remark precipitated perhaps the most memorable moment of Justice Alito’s tenure as a Supreme Court justice as he apparently mouthed the words “not true” toward Mr. Obama during the State of the Union speech.

Mr. Sekulow noted that the speech is one of the few times the American public sees the Supreme Court justices on television.

“It’s not necessarily a bad thing that the American people see that side of a justice.” he said.

But it’s not a side Chief Justice Roberts has shown.

His persona on the bench and in public can best be described as thoughtful and measured. He is not afraid, however, to occasionally flash his sharp wit.

Another difference between the two men has emerged in Justice Alito’s willingness to break from his conservative colleagues on a small number of high-profile, freedom of speech cases.

“It’s clear to see where he is,” Mr. Sekulow said.

Particularly noteworthy, Mr. Sekulow said, was a recent decision in which Justice Alito was the only member of the court to say the First Amendment does not give an anti-gay group the right to protest at military funerals. Justice Alito previously found himself as the only member of the court who thought videos depicting dogfighting should remain illegal.

Mr. Stone, of the American Constitution Society, was far less flattering in his assessment of Justice Alito, who he said “seems almost off the charts in his seeming inability to follow settled law when it counters his gut sense of right and wrong.”

He called Justice Alito’s dissenting opinions in the cases involving the dogfighting videos, known as U.S. v. Stevens, and military funerals, known as Snyder v. Phelps, “virtually lawless.”

Justice Alito’s dissent this month in Snyder v. Phelps has garnered much attention, as well as considerable praise from those who sharply disagreed with the high court’s ruling.

In the 8-1 decision written by Chief Justice Roberts, the high court upheld a lower court’s ruling to throw out a multimillion-dollar judgment that the father of a dead U.S. Marine from Maryland had won against the Westboro Baptist Church.

The group, which has staged more than 600 virulent protests at funerals of service members, says Americans’ misfortunes and tragedies are God’s punishment for a nation too tolerant of homosexuality.

Chief Justice Roberts wrote that the group’s protests are constitutionally protected and “such speech cannot be restricted simply because it is upsetting or arouses contempt.”

“On the facts before us, we cannot react to that pain by punishing the speaker,” the chief justice wrote in one of the year’s most anticipated cases. “As a nation, we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Justice Alito wrote a blistering dissent, saying “our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” He further wrote that Westboro Baptist’s attacks “make no contribution to public debate” and “allowing family members to have a few hours of peace without harassment does not undermine public debate.”

In such cases, Mr. Hume said, “Alito is emerging as a justice who is less libertarian than other justices in the conservative bloc, particularly on the issue of free speech.” While Justice Alito has begun staking out his claim, Mr. Hume said, Chief Justice Roberts legacy remains murky.

“It will probably take more time to discover what, if any, set of issues comes to define the Roberts Court,” Mr. Hume said. “At this point, it does not appear that Roberts has a clear agenda like his predecessor, Chief Justice [William H.] Rehnquist, who used his time on the court to redefine the balance of power between Congress and the states.”

Pro-business legacy

Mr. Hume said it initially seemed that Chief Justice Roberts‘ ultimate legacy could be that of a pro-business justice as evidenced by the decision allowing campaign funding from corporations.

But, Mr. Hume said, the court has recently issued decisions that could be interpreted as anti-business. Most notably was an opinion written by Justice Roberts in which the court said corporations do not have the same personal privacy when comes to freedom of information laws as people do.

In the case, AT&T challenged the release of any corporate document under the Freedom of Information Act, arguing that because the law includes corporations as part of its definition of “person,” its provision exempting the release of information that would violate “personal privacy” also should apply to corporations.

In an opinion filled with clever rhetorical flourishes, Chief Justice Roberts said that argument fell short because “two words together may assume a more particular meaning than those words in isolation.”

“‘Personal’ in the phrase ‘personal privacy’ conveys more than just ‘of a person,’” he wrote. “It suggests a type of privacy evocative of human concerns — not the sort usually associated with an entity like, say, AT&T.”

Chief Justice Roberts ended the decision with a witty quip: “We trust that AT&T will not take it personally.”

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