Casing John Roberts

Casing John Roberts

Will the Dems have the guts to ask?

As for Supreme Court rulings, senators should spend August compiling their short lists of cases to bring up at the hearings.

Here are five recent blockbusters that make mine:

GRUTTER v. BOLLINGER (2003) Justice Sandra Day O'Connor led four others in allowing the University of Michigan Law School to consider race in admissions in order to assemble a diverse student body. To agree with the four dissenters is to condemn virtually all race-based programs. It is also to minimize or ignore national reliance on Justice Lewis Powell's writing in University of California v. Bakke, an opinion 25 years earlier that embraced careful race-based diversity plans.

STENBERG v. CARHART (2000) In another 5-4 ruling with Justice O'Connor in the majority, the court struck down Nebraska's ban on late-term abortions. The Stenberg opinions reflect three distinct positions on Roe v. Wade: overrule it (Chief Justice Rehnquist, and Justices Antonin Scalia and Clarence Thomas); preserve it, but limited to its narrowest core (Anthony Kennedy); or apply its protections more expansively (the majority).

ATKINS v. VIRGINIA (2002) A majority of six (including Justice O'Connor) held that executing mentally retarded criminals violates the Eighth Amendment ban on cruel and unusual punishment. The opinions assess the relevance of foreign law to constitutional rights, and they discuss whether and how the Constitution's meaning evolves.

McCREARY COUNTY v. A.C.L.U. (2005) Justice O'Connor joined four others to end Kentucky's display of the Ten Commandments in its courtrooms. To embrace the dissents is to abandon the requirement of government neutrality toward religion and instead to permit significant government promotion of Christian doctrine.

SEMINOLE TRIBE v. FLORIDA (1996) In this seemingly technical 11th Amendment dispute about whether states can be sued in federal courts, Justice O'Connor joined four others to override Congress's will and protect state prerogatives, even though the text of the Constitution contradicts this result. Questions about this case will test the nominee's commitment to carefully following the literal text of the constitution.

If senators cannot unearth and examine Judge Roberts's specific views about these and other actual cases, we might as well not waste time on a hearing.

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