Kennedy notes that Kennedy and Alito voted together more than any other two justices on the Court--91% of the time. Kennedy offers examples of how the two are eroding civil liberties and undermining the rights of minorities:
During Roberts's hearing, I asked him about his statement that a key part of the Voting Rights Act constitutes one of "the most intrusive interferences imaginable by federal courts into state and local processes." In response, he suggested that his words were nothing more than an "effort to articulate the views of the administration . . . for which I worked 23 years ago."
Today -- too late -- it is clear that Roberts's personal view is the same as it was 23 years ago. In League of United Latin American Citizens v. Perry , the Supreme Court held that Texas's 2003 redistricting plan violated the Voting Rights Act by protecting a Republican legislator against a growing Latino population. Roberts reached a different view, concluding that the courts should not have been involved and that it "is a sordid business, this divvying us up by race."
The same Roberts who wished the federal government would leave Texas alone was unconcerned by federal intrusion into Oregon's approach to the issue of assisted suicide. In Gonzales v. Oregon , a majority of the Supreme Court held that the Justice Department lacked the power to undermine Oregon's Death With Dignity Act. However, Roberts joined a startling dissent by Justice Antonin Scalia, stating that the administration's actions were "unquestionably permissible" because the federal government can use the Constitution's commerce clause powers "for the purpose of protecting public morality" . . . .
Similarly, Alito had a pattern of ruling against individuals in Fourth Amendment cases -- including a case involving the strip-search of a 10-year-old girl. When questioned, he insisted that one of the judiciary's most important roles "is to stand up and defend the rights of people when they are violated." But Alito cast the deciding vote in Hudson v. Michigan , in which the court decided -- contrary to almost a century of precedent -- that evidence gathered during an unconstitutional search of a suspect's home could be used to convict him.
The evidence against Roberts and Alito leads Kennedy to conclude that judicial nominees must be pressed to provide more candid answers about their judicial thinking. He wants the Judiciary Committee to replace the short round of questioning by each of the committee members with a more in-depth inquiry. "[I]t is essential we learn enough of their legal views to be certain that they will make good on the simple promise etched in marble outside the Supreme Court: 'Equal Justice Under Law, '" Kennedy says.