The Volokh Conspiracy

I have also been struck by the modesty of his opinions so far. So, it does seem possible, and maybe even likely, that he will end up being another Roberts (and maybe with a higher vote count, since one cannot plausibly complain about the lack of a paper trail).

That said, it is early days yet, and someone may yet dig up something from outside his judicial opinions that will offend one side or the other.

The fact that he doesn't have a long paper trail of controversial opinions probably indicates that the conservative "revolution" that modern conservatives are hoping for isn't coming, and it may also indicate that he has no overarching judicial conservatism that he will apply from the bench.

- Josh

"it is clear that he is more than willing to legislate from the bench, to further his authoritarian agenda."

And you cite what examples as your basis for this?

Respectfully, Thorley, it's time for trolls like Bruce Wilder to put up or shut up.

So Bruce Wilder, please provide specific pinpoint cites to Alito's opinions that prove he is "more than willing to legislate from the bench, to further his authoritarian agenda."

Alito's opinions are all too typical of a conservative ideologue. When reviewing a right-wing enactment, as in Casey, he shows great modesty and deference to legislative judgments. But when it comes time to review a left-wing enactment, such as the FMLA, suddenly the legislature is required to support each and every component of its factfinding with absolute statistical proof.

Yes, you could read any decision in a vacuum, and probably conclude that this sounds like a fair and serious judge. If he was applying the same type of "judicial modesty" regardless of the issue presented, perhaps he would fit that description.

That's not an accurate representation of Groody, which is well discussed below. Basically, both Hibbs and Groody were pretty close calls, and Alito fell on the conservative side of the line.

Alito is not trying to score points, make grand ideological claims, or show the world how smart he is

By this are you suggesting that Scalia attempts to do all these things?

Reply to Bruce Wilder:

Legislating from the Bench? Consider Hibbs

You're confused. Alito had nothing to do with Hibbs. Your link leads to a post about Alito's decision in Chittister v. PA Dept. Community and Economic Development. I have no idea who wrote the post that you linked to, but it's not even close to being accurate.

Your link says:

[Alito] said that the FMLA was unconstitutional because there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave.

But Alito said no such thing. In fact, what he did say was

In enacting the FMLA, Congress found, among other things,
that it is "important . . . that fathers and mothers be able
to participate in early childrearing and the care of family
members who have serious health conditions," 29 U.S.C.
S 2601(a)(2), that the "lack of employment policies to
accommodate working parents can force individuals to
choose between job security and parenting," S 2601(a)(3),
that "there is inadequate job security" for persons who
might take medical leave, S 2601(a)(4), and that "the
primary responsibility for family caretaking often falls on
women" and has a greater effect on their work than it does
on men, S 2601(a)(5). . . .

Alito continues (and this part was completely taken out of context and misunderstood by the author of your linked post):

. . . Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation
of the Equal Protection Clause. For example, Congress did
not find that public employers refused to permit as much
sick leave as the FMLA mandates with the intent of
disadvantaging employees of one gender. (Indeed, it is
doubtful that a practice of allowing less sick leave than the FMLA requires would even have a disparate impact on men
and women.). Nor are we aware of any substantial evidence
of such violations in the legislative record.

And then the idiot at your link interprets *that* to mean:

Alito's idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually.

Obviously that's *not* what Alito said at all. He was talking specifically about the portion of FMLA that was at issue in the case: the requirement that states give 12 weeks leave to any employee who has a "serious health condition that makes the employee unable to perform the functions of the position of such employee"--regardless of sex or family issues. That's right, the plaintiff was just some guy who was sick. Since when is sick leave a requirement of the 14th Amendment? The contention's quite absurd, actually.

Then the doofus at your link says,

Even William Rehnquist, who wrote the Supreme Court's 6-3 opinion in 2003 overturning Alito's ruling, found Alito's argument deeply flawed.

Then he starts yabbering a Hibbs. This guy's clueless. The Court didn't overrule Alito's decision. In fact, Alito's decision came right on the heels of Kimel *and* stayed true to it. Heck, even the leftist judges on the panel with him didn't dissent.

Hibbs was a different case from a different circuit and dealt with FMLA in a totally different context. I suggest you stay away from that crap blog. Stick around here. You'll learn a lot.

I'm sorry I had a bit of a hickup with the ol' HTML -- my apologies for that/screwed up in the cut and paste, I guess.

Hibbs and Chittister are related, and Hibbs effectively overruled Chittister, whether you want to acknowledge that or not. Alito wrote an opinion in Chittister, exempting State employers and Hibbs says, State employers are subject. The point at issue as far as this thread is concerned was to provide an illustration of "legislating from the bench." Do you let Congress legislate, or not? Alito found a reason not to, saying that Congress had to "prove" in its legislative history that there was a problem specific to the States as employers, before it could be allowed to pass this law. (Too bad the Congress did not ask Alito to the subcommitte markup.) AngryBear was making fun of Alito for requiring Congress to document the obvious, and he was, in fact, paraphrasing things from Alito's opinion, where Alito makes assertions of fact concerning the need for the Act.

Legally, Alito's objection rests on the notion that, under an 11th amendment grant of sovereign immunity, the Congress can give Federal jurisdiction to a suit by a citizen against the citizen's State only under the 14th amendment. A liberal "strict constructionist" would say that the 11th amendment is only about diversity jurisdiction and not about sovereign immunity (that's the position of Justice Stevens, I believe.) So, from a liberal point of view, Chittister is twofer: judicial activism interfering with the prerogatives of the legislature, and reading things into the Constitution, which are not actually there in the text.

frankcross: I don't think Groody was a close call at all. The search warrant did not authorize a search of the mother and daughter. It is clear that the police, in their applicaton for a warrant, asked for a warrant, which would authorize a search of every individual found at the premises, but that is NOT the warrant they got. Maybe, they should have gotten the warrant they wanted, but they did not. To let the police search people or places not specified undermines the whole point of the requirement for a warrant. This is not a small difference; the "conservative" side of the line says, "specified" -- Alito was on the authoritarian side of the line -- "authority cannot be held responsible for error" is a basic authoritarian principle.

frankcross: If a warrant incorporates the affidavit in whole or in part, it says so. It is not the kind of thing, which should require divination.