Sen. Mike DeWine (R) of Ohio told Roberts Monday that the Supreme Court is "unmaking" the US Constitution. "Many fear that our court is making policy, when it repeatedly strikes down laws passed by Congress and the state legislature," he said, citing laws protecting the aged, the disabled, and women who are the victims of violence.
GOP Sen. John Cornyn of Texas blasted the "ideal of the Supreme Court as a sort of superlegislature." Sen. Sam Brownback (R) of Kansas, a leading conservative and potential presidential candidate in 2008, told Roberts that "constitutionalists from Hamilton to Frankfurter surely would be shocked at the broad sweep of judicial activity today."
Democrats struck similar themes.
Sen. Dianne Feinstein (D) of California, one of five Democrats who voted for Roberts for confirmation to the Fourth Circuit Court of Appeals in 2003, challenged the Rehnquist court's restrictive interpretation of the Constitution, which would limit the role of Congress. "If you, Judge Roberts, subscribe to the Rehnquist court's restrictive interpretation of Congress's ability to legislate, the impact could be to severely restrict the ability of Congress to tackle nationwide issues that the American people have elected us to address."
At issue is whether the Constitution, especially the commerce clause, permits Congress to extend its regulatory reach. While Republicans and Democrats both say they oppose "judicial activism," there is little agreement, even within parties, on what the term means.
"It's highly ironic that it was the conservatives on the court who overturned so many statutes," says Jonathan Turley, a constitutional law professor at George Washington University Law School.
"The other irony is that Roberts is a lifelong advocate of federalism and states' rights. Like his mentor, Rehnquist, he has a narrow view of the commerce clause."