Will Wash. Post reconsider its Supreme Court endorsement criteria after Roberts, Alito?

In September 2005 and January 2006, The Washington Post editorial board endorsed the nominations of John G. Roberts Jr. and Samuel A. Alito to the Supreme Court, asserting in both instances that Democrats should defer to President Bush's choices because both nominees, while conservative and likely to differ with the editorial board in many cases, would likely show judicial restraint and respect for precedent. The Post's editorial endorsing Roberts went so far as to call him "the best nominee liberals can reasonably expect" from Bush. In recent months, the Post has criticized several 5-to-4 Supreme Court decisions in which both Roberts and Alito were in the majority, on the grounds that the opinion written or supported by either one or both of them showed a lack of judicial restraint and fidelity to precedent. Yet the Post has given no indication that its evaluation of either nominee was flawed, or that it intends to revisit its criteria for evaluating Supreme Court nominees.

On September 18, 2005, the Post endorsed Roberts, praising him as "overwhelmingly well-qualified, possess[ing of] an unusually keen legal mind and practic[ing] a collegiality of the type an effective chief justice must have." The editorial noted the large disparity between the Post and Roberts "on a number of important issues" -- for example, presidential power, affirmative action, and a "narrow view" of some civil rights protections -- where, the editorial stated, Roberts "seems likely to take positions that we will not support." Nevertheless, the editorial stated, Roberts "represents the best nominee liberals can reasonably expect from a conservative president who promised to appoint judges who shared his philosophy," because he met several criteria, including "a modest conception of the judicial function [and] a strong belief in the stability of precedent." The editorial continued, "While [Roberts] almost certainly won't surprise America with generally liberal rulings, he appears almost as unlikely to willfully use the law to advance his conservative politics."

The Post, however, did indicate one issue where it thought Roberts might reluctantly overturn precedent -- abortion. "Given his comments about precedent and the right to privacy, we do not believe a Chief Justice Roberts will be eager to overturn federal abortion rights. But we recognize that he might end up supporting that unfortunate step."

The Post's January 15, 2006, endorsement of Alito made similar arguments: Alito "is undeniably a conservative whose presence on the Supreme Court is likely to produce more conservative results than we would like to see," but that, the Post argued, is "just what President Bush promised concerning his judicial appointments." A president's "well-qualified" judicial nominees are "due deference," and "Judge Alito is superbly qualified. His record on the bench is that of a thoughtful conservative, not a raging ideologue. He pays careful attention to the record and doesn't reach for the political outcomes he desires." The Post added: "[I]t's fair to guess that Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence."

However, in editorials on 5-to-4 decisions this term in which both Alito and Roberts were in the majority, the Post has repeatedly excoriated opinions written or supported by Roberts or Alito for not possessing the same qualities that the paper had previously said drove its endorsements.

• A June 29 editorial blasted the court's decision in Parents Involved in Community Schools v. Seattle School District No. 1 for "invoking the language of Brown [v. Board of Education] but ignoring its context and undermining its intent" when it "ruled that the Constitution forbids school systems from taking certain steps to maintain integrated schools." According to the editorial, in overturning a Kentucky school district's voluntary integration plan that was originally "adopted when the system was under a federal court's desegregation order," the decision -- supported by Roberts and Alito -- provided "a strange view of the Constitution that requires a desegregation plan one day and prohibits it the next" -- hardly the respect for precedent that the Post found in either justice. The editorial particularly took exception to Roberts' four-justice plurality opinion use of Brown v. Board of Education:

But the harm to white students here cannot legitimately be compared to the harm to black schoolchildren that animated the court in Brown. Justice Kennedy's concurring opinion correctly took the four-justice plurality to task for its glib assertion, in the opinion written by Chief Justice John G. Roberts Jr., that the "way to stop discrimination on the basis of race is to stop discriminating on the basis of race." As Justice Kennedy noted, "Fifty years of experience since Brown. . . should teach us that the problem before us defies so easy a solution." There is reason to doubt whether the leeway that Justice Kennedy would give school systems would be adequate for the task, and, even if it were, to worry how long that uneasy equipoise would hold on a court tilting as far to the right as this one is.

• In a June 26 editorial on the campaign-finance decision Federal Election Commission v. Wisconsin Right to Life, the Post wrote that "a changed court, without acknowledging that it was doing so, jettisoned [the] common-sense approach" adopted in the 2003 case McConnell v. Federal Election Commission. That case had generally upheld the 2002 Bipartisan Campaign Finance Reform Act's restrictions on outside groups running "issue ads" targeting "clearly identified" federal candidates within 60 days of a federal general election or within 30 days of a primary. While Roberts' opinion -- joined by Alito -- stated it wasn't overriding the earlier case, the Post editorial noted that "[t]hree other justices who had dissented in the earlier case -- Antonin Scalia, Anthony M. Kennedy and Clarence Thomas -- said they would do explicitly what they said their colleagues had done silently and overrule the previous decision." And in direct contrast to its earlier view that Alito would not "substitute [his] judgment for that of the political branches in areas of their competence" and to its assertion that Roberts and Alito would respect precedent, the Post criticized the Roberts opinion for defying precedent on an issue that the court "has long made clear" -- that "Congress has the power to prevent corporations and labor unions from seeking to influence federal elections" -- and suggested that the court had intruded into an area in which it had previously said Congress was fully able to act:

Political speech is at the core of the First Amendment; restrictions on such speech must be carefully crafted. The court, however, has long made clear that Congress has the power to prevent corporations and labor unions from seeking to influence federal elections; such entities can't make campaign contributions or run election ads. Yesterday's ruling reopens a dangerous loophole.

• A June 17 editorial on the case of Keith Bowles, an Ohio man attempting to appeal his conviction on a murder charge, summarized the decision as a message of "tough luck." A federal judge had given Bowles 17 days to file his appeal; he filed it 16 days later. However, federal law in this circumstance required that Bowles file within 14 days. According to the editorial, the majority opinion -- written by Thomas and supported by both Roberts and Alito -- "insisted that the court was left with no choice but to dismiss the case; these time limits, Justice Thomas said, are 'jurisdictional,' and failing to comply with them, for whatever reason, divests courts of the ability to hear the claim." The editorial then attacked this conclusion for ignoring precedent to get to the result: "In fact, as the dissent by Justice David H. Souter pointed out, the majority was not in any way bound to reach this manifestly unjust result; indeed, it had to ignore and overrule precedents to keep Mr. Bowles out of court." Citing Souter's dissent, the editorial criticized the majority's approach to the law:

But as the dissenters argued, federal judges have more flexibility than the majority's overly rigid approach allows. "It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch," Justice Souter wrote. It "certainly seems reasonable to rely on an order from a federal judge," he noted -- "unless every statement by a federal court is to be tagged with the warning 'Beware of the Judge.' "

Beware of this court may be more like it.

• In an April 19 editorial on the Court's decision in Gonzales v. Carhart upholding a federal ban on so-called "partial-birth" abortions, the Post wrote that "[t]he willingness of the two new justices to stray so far from the court's previous rulings is disappointing and ominous."

However, the Post's May 31 editorial regarding Ledbetter v. Goodyear Tire & Rubber Co. did disagree with that decision, but said that the issue -- the application of time limitations on filing sexual discrimination lawsuits over unequal pay -- was debatable from a legal standpoint, because "[a]s a statutory matter, this is a difficult question. As the majority opinion, by Justice Samuel A. Alito Jr., pointed out, Congress, in passing Title VII [the anti-sexual discrimination statute], took care to put in a strict time limit, and it didn't make an exception for unequal pay." The editorial said that "[w]hoever had the better reading of the statute, Justice Ginsburg" -- who argued that a strict application of the statutory time limit in this case would counter Title VII's "core purpose" of remedying discrimination in the workplace -- "is clearly right on the policy."

A February 26 Post editorial did praise a Alito- and Roberts-supported 5-4 decision restricting punitive damage awards. However, that decision, Phillip Morris USA v. Williamson, was written by Justice Steven Breyer, who is not a member of the court's conservative bloc.

According to the Nexis database, the Post did not run editorials on the other 5-4 decisions where Alito and Roberts were in the majority: Leegin Creative Leather Products, Inc. v. PSKS, Inc., National Association of Home Builders v. Defenders of Wildlife, Hein v. Freedom From Religion Foundation, Inc., Uttecht v. Brown, Schriro v. Landrigan, James v. United States, Lawrence v. Florida, and Ayers v. Belmontes.