From Arlen Specter's
WaPo editorial today on the Supreme Court:
But does the Supreme Court respect Congress? By a 5 to 4 vote the court has declared legislation protecting women against violence unconstitutional because of the congressional "method of reasoning" in passing it, and the insufficiency of the legislative record -- even though Justice David Souter noted in dissent that a "mountain of data" on the subject had been acquired from task forces in 21 states.
Similarly, in a 5 to 4 decision, the court struck down a law prohibiting discrimination in employment because of an allegedly insufficient record, even though the legislation was supported by 13 congressional hearings and evidence gathered by special task forces in every state.
Within the past decade the court has expanded its super-legislature status by invalidating legislation it dislikes, plucking out of the air a brand-new doctrine that acts of Congress are "disproportionate and incongruent," whatever that means. That led Justice Antonin Scalia to admonish his colleagues for setting the court up as a "taskmaster" to determine whether Congress has done its "homework," a situation that he saw as an "invitation to judicial arbitrariness and policy-driven decision-making."
As best I can tell, the decisions referred to are, respectively, U.S. vs Morrison and University of Alabama vs. Garrett. In both cases, the breakdown was the same, with Rehnquist, Thomas, Scalia, Kennedy and O'Connor in the majority, and Stevens, Souter, Ginsburg, and Breyer dissenting. In both cases, the conservative majority curtailed Congress' right to legislate, and the liberal minority sided with legislative power.
Of course, who gets quoted excoriating the court for "judicial arbitrariness"? None other that Scalia, who is guilty of exactly that behavior on a regular basis (I'm not even bringing up Bush Vs. Gore). It would have been nice had Specter highlighted the fact that his two paragraphs demonstrate the sanctimonious hypocrisy that Scalia can put into such flowery language, but as we've discovered, expecting too much from PA's senior senator will always leave you disappointed.