SOUTH DAKOTA STRAIGHT TALK

By Linda Greenhouse

New York Times

September 15, 2005

WASHINGTON, Sept. 14 - Senator Arlen Specter's testy interrogation of Judge John G. Roberts Jr. on the Supreme Court's treatment of Congress may well have left viewers scratching their heads on Wednesday morning, with cryptic references to the "congruence and proportionality test" and to unfamiliar case names like "Lane and Hibbs."

But the line of questioning that Mr. Specter, the Pennsylvania Republican who is Judiciary Committee chairman, chose to pursue offered a window on the increasingly troubled relationship between the court and Congress, as well as on one of the most consequential developments of the Rehnquist court's later years.

In a series of decisions, many written by Chief Justice William H Rehnquist himself, the court declared unconstitutional acts of Congress that had been passed by broad bipartisan majorities.

Laws permitting public employees to sue state employers for discrimination on the basis of disability and age, and also giving women access to federal court to sue rapists for damages, ran up against the court's new definition of the limits on Congress's power and the justices' insistence that they alone have the final word in interpreting the Constitution.

"I take umbrage at what the court has said, and so do my colleagues," Senator Specter told Judge Roberts.

From 1995 to 2003, the Supreme Court overturned all or parts of 33 federal statutes, 10 of them on the ground that Congress had exceeded its authority either to regulate interstate commerce or to enforce the constitutional guarantees of due process and equal protection. Until then, the modern court gave Congress wide berth to define its own role under both of the Constitution's relevant provisions, the Commerce Clause and the 14th Amendment.

Senator Specter took particular exception to the court's conclusion in several of the cases that Congress had not compiled an adequate record showing the existence of the problems the statutes sought to solve.

He said that leading up to the passage of the Violence Against Women Act, for example, "there were reports on gender bias from the task forces in 21 states, and eight separate reports issued by Congress and its committees over a long period."

In United States v. Morrison, the court's decision in 2000 that overturned the private-lawsuit portion of the statute, Chief Justice Rehnquist said that "Congress's findings were weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected," namely that various instances of violence against women could be added together to demonstrate an impact on the nation's economy sufficient to bring the subject within Congress's authority over interstate commerce.

Turning to Judge Roberts, nominated to succeed the late chief justice, Senator Specter said, "Do we have your commitment that you won't characterize your 'method of reasoning' as superior to ours?" The nominee demurred and, in fact, was so cautiously nonresponsive as to leave the senator to continue with what amounted to a monologue.

"There isn't a method of reasoning which changes when you move across the green from the Senate columns to the Supreme Court columns," Mr. Specter said. "And we do our homework, evidenced by what has gone on in this hearing. And we don't like being treated as schoolchildren, requiring, as Justice Scalia says, a taskmaster." Then he demanded, "Will you do better on this subject, Judge Roberts?"

"Well, I don't think the court should be taskmaster of Congress," Judge Roberts replied. "I think the Constitution is the court's taskmaster, and it's Congress's taskmaster as well. And we each have responsibilities under the Constitution."

Senator Specter's reference was to a dissenting opinion by Justice Antonin Scalia in a decision last year, Tennessee v. Lane, which permitted states to be sued under the Americans With Disabilities Act for failing to provide accessible courtrooms. On the surface, at least, the decision conflicted with a 2001 ruling, Board of Trustees v. Garrett, which gave states immunity from lawsuits by their employees under the same law.

Justice Scalia, who had joined the majority in the 2001 case, said the conflicting results showed the "judicial arbitrariness" of the court's approach. "It casts this court in the role of Congress's taskmaster," he said.

Justice Scalia objected to the requirement the court has placed on Congress to show that its legislative approaches are "congruent" with, and "proportionate" to, the problem it is seeking to address.

Mr. Specter asked Judge Roberts: "Isn't this 'congruence and proportionality' test, which comes out of thin air, a classic example of judicial activism? Isn't that the very essence of what is in the eye of the beholder, where the court takes carte blanche to declare acts of Congress unconstitutional?"

Judge Roberts started to reply that in its two most recent cases in this series, the Lane case from Tennessee and another case, Nevada Department of Human Resources v. Hibbs, the court had shifted gears and rejected constitutional challenges to the laws in question. The Hibbs case, from 2003, allowed suits against states under the Family and Medical Leave Act.

But no sooner had Judge Roberts started to explain "Lane and Hibbs," than Senator Specter cut him off: "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."

Mr. Specter asked Judge Roberts if he agreed with Justice Scalia's critique of the "congruence and proportionality test." The nominee declined to say, noting that another such case is on the docket for the coming term.

That case, United States v. Georgia, scheduled for argument on Nov. 9, raises the question of whether prisoners can sue states under the disabilities act, as Congress intended.

Senator Specter was not satisfied, but it was clear that he knew the dialogue was over. Before turning to a less freighted subject - how the nominee would, as chief justice, lead the other justices, all of whom are his elders - he made one last try.

"Judge Roberts, I'm not talking about an issue," he said. "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."