Interesting story today in the Politico. Apparently, former Judiciary Committee Chairman Arlen Specter plans to review the testimony of Justices Roberts and Alito to glean whether their recent actions in deciding cases matched with their testimony before Senate committees. Remember that review in the Senate before appointment is the only opportunity for the Legislative branch to influence the Supreme Court as appointments are for life. Thus, this review means nothing to either Justice Roberts or Justice Alito as they are now lifetime members of the Court. They can either serve until death, like Justice Rhenquist, or retire like Justice O'Conner.

Squarely in the background of these political maneuvers are the Affirmative Action decisions and the failure of the Supreme Court to uphold the recent precedent set in the Grutter and Gratz decisions. Both Roberts and Alito voted to eliminate affirmative action from schools in Parents Involved in Community Schools, although a concurrence by Justice Kennedy may have saved the policy from total elimination.

Personally, how can the Senate or Senator Specter be surprised at these decisions? If anything, I am surprised at Alito's opinion in Frederick, where he seemed to lean toward protecting students rights. The precedent in Grutter and Gratz was not that strong. In fact, because of the variety of opinions in the two cases, when the cases were published in 2003 everyone was confused about the meaning of the decisions. Thus, it was not like the Court in Parents Involved in Community Schools was overruling a 100 year old precedent and clearly violating stare decisis.  I do not think anyone should be surprised at their decisions. They were conservative appointees of a conservative administration. For the Senate to now act like they were somehow caught off guard by the recent decisions is a bit specious.  

For more on the recent Supreme Court's use of precedence, check out this post today by Mitchell Rubinstein at the Adjunct Law Prof Blog.