Cass Sunstein on Alito:
Over at The New Republic (free registration required), Cass Sunstein has posted a brief and preliminary take on Judge Alito's opinions as an appellate judge. An excerpt:
A reading of the opinions of Samuel Alito reveals that he is an unexpectedly interesting judge, with a conservative record that shows a very different tone from that of Justice Scalia or Justice Thomas. He does not press ambitious claims, and each of his opinions is firmly anchored in the law. At the same time, his overall pattern of votes shows a great deal of deference to established institutions.Thanks to the Basher for the link.
Unlike, say, Justice Scalia, Judge Richard Posner, and Judge Michael Luttig, Alito avoids theoretically ambitious claims. He rarely asks for large-scale reorientations of the law. His opinions are both measured and low-key. He does not insist that the Constitution must mean what it meant when it was originally ratified. If each opinion is read in isolation, the evaluation, even for those who disagree, would almost always be this: solid, more than competent, unfailingly respectful, and plausible.
Can you provide specific examples where Alito differs from - and agrees with - Scalia on the application of the law (I don't care that Alito chooses reserved words while Scalia prefers white-hot rhetoric if they end up applying the law in the same manner).
Well, there is that Pauline Thomas case, for one.
It is true that judges and Justices operate under different constraints. But I think one can still distinguish among judges, including with respect to how they describe those constraints even as they obey them.