Top Supreme Court myths, falsehoods and distortions

Since Justice Sandra Day O'Connor announced her retirement from the Supreme Court on July 1, conservatives have formulated or resurrected numerous false and misleading claims about the high court, which some in the media have all too willingly repeated without challenge. With President Bush's anticipated nomination announcement later today, some of these claims are sure to resurface, and Media Matters for America will be on the lookout for new “Supreme distortions” that will undoubtedly emerge.

1) Robert Bork was “smeared” when he was nominated for the Supreme Court

Conservatives have attempted to undermine potential opposition to a Bush nominee by resurrecting Robert H. Bork's failed nomination to the Supreme Court in 1987. In asserting that Democrats “smeared” Bork and vowing to save any Bush nominee from a similar fate, they attempt to paint any opposition to a Bush nominee -- or even efforts to scrutinize his or her record -- as vicious, unfair, and outside the scope of the Senate's advice and consent authority.

The reality of Bork's failed nomination is quite different. After the Senate rejected Bork's nomination, Reagan White House officials and numerous senators -- Republicans as well as Democrats -- denounced his judicial record and his performance at the confirmation hearings.

For example, Sen. John Warner (R-VA), who voted against Bork, said: “I searched the record. I looked at this distinguished jurist, and I cannot find in him the record of compassion, of sensitivity and understanding of the pleas of the people to enable him to sit on the highest Court of the land.” Similarly, White House officials pinned Bork's rejection on his controversial writings and the fact that the Senate largely found him unpalatable.

Sen. Arlen Specter (R-PA), now chairman of the Senate Judiciary Committee, continues to defend his opposition to the Bork nomination.

2) Democrats will oppose any nominee President Bush picks

A cornerstone of the Republican strategy to confirm a Bush high court nominee is to blunt Democratic opposition by asserting ahead of time that the Democrats plan to oppose any Bush nominee, no matter who it is. The media have uncritically repeated these claims, without noting the Democrats' general and specific recommendations of potential nominees who would be approved by a large margin in the Senate.

In the wake of O'Connor's retirement, for example, on the July 1 edition of PBS' The Journal Editorial Report, Wall Street Journal columnist John Fund said: “Because this is viewed as a swing-justice position, I think that there will be a filibuster, regardless of the circumstances, including ideology.”

In a July 8 article, Washington Post staff writer Peter Baker wrote:

The White House presumes that Democrats will fight anyone it nominates, and found reinforcement for this view in comments by Sen. Charles E. Schumer (D-N.Y.) overheard on his mobile telephone while riding a train to New York. “We are contemplating how we are going to go to war over this,” Schumer was reported saying on the Drudge Report Web site.

Baker offered no explanation for his contention that the unconfirmed statement by Schumer “reinforce[s]” the White House's presumption that “Democrats will fight anyone it nominates.” And, in repeating the claim and lending it credibility by asserting that Schumer's purported statement “reinforce[d]” it, Baker ignored suggestions by Senate Minority Leader Harry Reid (D-NV) -- some made publicly, others reportedly made directly to the president -- of several Republican nominees Democrats would consider acceptable.

3) In questioning nominees, Democrats will treat them with disrespect and hostility

The mainstream media have also echoed Republican rhetoric that any action taken by Senate Democrats during the confirmation process short of complete compliance would constitute obstructionism. For example, Washington Post staff writer Mike Allen wrote on July 3 that Senate Majority Leader Bill Frist's (R-TN) appeal for “dignity and respect” in the confirmation hearings “does not appear likely.” Baker cited Schumer's pledge to “thoroughly vet” the as-yet-unnamed nominee as evidence for this pessimistic prediction, even though Schumer has specifically stated that the questioning “be respectful, be dignified, for sure.”

The re-emergence of the term "Borking," which The Wall Street Journal editorial page coined in reference to the Senate's rejection of the Bork nomination, reinforces the right-wing line that opposition to any Bush nominee for any reason is unwarranted and unfair. As conservatives mean it, “to Bork” is “to attack a person's reputation and views unfairly,” as Bork himself stated in a July 1 interview on CNN. The obvious implication of Bork having been “Borked” is that he was wrongly denied a seat on the high court.

Many in the media have repeated the term uncritically, with no explanation of the phrase's right-wing origins and seemingly no regard for how its unqualified use reveals a heavy conservative bias.

4) Roe v. Wade is not threatened by O'Connor's retirement

Public opinion polling has consistently demonstrated that most Americans support Roe v. Wade, the Supreme Court decision that established the right to abortion. As a result, conservatives have sought to avoid criticism of a potential nominee's anti-abortion stance by deceptively claiming that Roe is not threatened by the current vacancy on the high court. For example, former White House counsel and Committee for Justice chairman C. Boyden Gray has argued that the Supreme Court “has a 6-3 majority favoring Roe v. Wade, so replacing [O'Connor] will not challenge Roe's core.”

Such claims understate the potential impact O'Connor's successor could have on the scope of abortion rights. While a majority upholding Roe presumably remains even with O'Connor's departure, Justice Anthony Kennedy, the likely fifth vote against its reversal, has supported significant restrictions on the right to abortion (including restrictions that O'Connor cast the decisive fifth vote to strike down). The New York Times wrote on July 10 that even though many experts agree that the “basic right to abortion, declared in Roe v. Wade in 1973, will survive regardless of who replaces Justice O'Connor, given that the current majority for Roe is 6 to 3,” a reshaped Supreme Court could “restrict abortion in significant ways” by “seriously limit[ing] the decision's [Roe's] reach and chang[ing] the way abortions are regulated around the country.”

Kennedy was appointed by President Reagan on February 18, 1988, and drew the ire of conservatives by joining the controlling plurality opinion in the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey, which preserved the “essential holding” of Roe. Yet even in Casey, the Court adopted an “undue burden” standard of review that curtailed the broader right defined in Roe and upheld numerous restrictions on the right to abortion in Pennsylvania, including the 24-hour waiting period, informed consent, parental notification requirements, and recordkeeping and reporting requirements on facilities providing abortion services.

More recently, citing Kennedy's decision to join two dissenting opinions in 2000 when the Supreme Court struck down a Nebraska law banning late-term abortions and upheld a Colorado law requiring abortion protesters to keep a specified distance from clinic patients and employees, Time magazine noted on June 29, 2000, that Kennedy “has apparently been overtaken by serious reservations as he considers the future of abortion in America -- leading many to wonder if an anti-abortion plurality could be looming on the horizon.”

5) Democrats should follow “Ginsburg precedent” by accepting a Bush nominee despite significant ideological differences

Several news outlets have allowed the White House and its allies to deceptively argue that Senate Democrats should follow the “precedent” set by Supreme Court Justice Ruth Bader Ginsburg's 1993 confirmation when they consider President Bush's nominee. Counselor to the president Dan Bartlett has noted that Ginsburg received near-unanimous support from Senate Republicans despite “deep philosophical differences.”

But the media have failed to reveal that the true "Ginsburg precedent" is bipartisan consultation, not Republican acquiescence to President Clinton's choice. According to Sen. Orrin Hatch (R-UT), Clinton nominated Ginsburg on Hatch's own recommendation. Further, Clinton nominated Ginsburg after she had established a largely moderate record during her 13 years on the U.S. Court of Appeals for the D.C. Circuit, often voting with conservative judges Bork, Kenneth W. Starr and Laurence H. Silberman.

6) Democrats are divided on whether ideology constitutes an “extraordinary circumstance” under Senate agreement on filibusters

In the debate over what constitutes valid reason to oppose a Supreme Court candidate, mainstream news reports have baselessly suggested that Senate Democrats are divided over whether a nominee's extreme ideology could constitute the “extraordinary circumstances” necessary to justify a filibuster under the bipartisan Senate agreement on judicial filibusters reached in May.

For example, The Washington Post falsely reported that Senate Democrats are divided internally about whether extreme “ideology” or only “judicial activism” should count as “extraordinary circumstances.” In fact, Democrats have used the two terms interchangeably to express a common willingness to oppose a nominee who places his or her personal views over the dictates of the law in reaching judicial decisions. Sen. Mary Landrieu (D-LA) and Sen. Ben Nelson (D-NE), both of whom signed the filibuster agreement, have said that such a nomination could constitute an extraordinary circumstance, contrary to media efforts to cast Nelson as a dissenter.

7) Bush favors conservatives who will strictly interpret the law over judicial activists who legislate from the bench

Numerous media outlets (see here, here, and here) have reported Bush's claim that he wants to nominate a "strict constructionist" to the Supreme Court -- which he defines as someone “who will strictly interpret the Constitution and not use the bench to legislate from.” The Washington Post even suggested that “judicial activism” is the unique province of liberal Supreme Court justices and judges. But these reports never offered a definition of judicial activism or probed the Bush administration for one, nor did the Post examine the validity of its accusation that liberals are more likely to legislate from the bench.

Yale law professor Paul Gewirtz and recent Yale Law School graduate Chad Golder have offered one definition of judicial activism -- a justice's propensity to strike down statutes passed by Congress -- and under their measure, it's the conservatives on the Supreme Court who are the real activists. Justice Clarence Thomas was the most likely to strike down federal laws, while Ginsburg and Stephen Breyer -- the only two current justices to have been appointed by a Democratic president -- were the least likely to do so.

Similarly, NBC host Katie Couric echoed the conservative's false dichotomy between strict constructionists and judicial activists in asking what the public would prefer in a judicial nominee. Couric described a July NBC News/Wall Street Journal poll question that asked whether Bush should appoint a judge “who will give greater consideration to the original intentions of the authors of the Constitution” or one that “will give greater consideration to changing times and current realities in applying the principles of the Constitution.” She summarized the second choice as “a judicial activist” during the July 14 edition of Today:

COURIC: Should Bush appoint a strict constructionist to the Supreme Court? Forty-five percent. Or changing -- someone who responds to changing times or current realities? Forty-seven percent. In other words, a judicial activist.

But as Gewirtz and Golder's study suggests, those justices described as “strict constructionists” -- or, more accurately, “originalists” or “textualists,” who purport to discern and apply the true original meaning of constitutional provisions -- are in fact the real judicial activists, routinely interpreting constitutional provisions in a manner that justifies overturning congressional acts, even those with broad bipartisan support.