Evaluating the New Justices in Light of the Confirmation Ordeal

Abstract

John Roberts and Sam Alito were among the bright young conservatives who were drawn to the Reagan Administration in the early 1980s.3 President Reagan had a very strong view that judges had overstepped their authority, that they were making too many decisions which should be left to the voters and to a democratic society. And they were doing things like throwing out school prayers or overturning, at one time, the death penalty and throwing out the abortion laws. The American public didn't support all these changes, and Reagan believed that in a democratic society, judges shouldn't be making those decisions.

The lawyers of the Reagan Justice Department also had a series of very distinctive and clear views about the law. They were skeptical of affirmative action and of use of race by the government. They tended not to believe in the strict separation of church and state; they believed this was an incorrect interpretation of the First Amendment and believed there should be more room for religion in public life. They thought Roe v. Wade, of course, was wrong. They were less enthused by environmental protection and more supportive of property rights. They tended to believe in what I think Doug Kmiec would describe as robust executive power. They were opposed to meddling by Congress in the business of the executive branch, and they had some preference for states' rights over a federal power.

Now, my sense is that John Roberts and Sam Alito share all those big views, and we'll see that in the years ahead.