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How Conservative Is Samuel Alito?:
The comment thread to my prior post raises an interesting question: How conservative is Judge Alito? Assuming he is going to be confirmed, is he going to be a "hard core" conservative, another Clarence Thomas? Will he reach conservative results? Will he be an originalist?

  We're all just guessing here, of course. But my sense is that Alito is less conservative -- both politically and methodologically -- than a lot of people seem to think. This means that if you're on the left, you probably have less to fear from a Justice Alito than you expect. On the other hand, if you're on the right, you're probably going to end up a bit disappointed. If we want to break it down to the question of results, my guess is that he'll generally end up somewhere to the right of Kennedy, and either close to or slightly to the left of Roberts.

  I'm basing my guess on two sources of information First, it was the impression I had of Alito when I was a Third Circuit law clerk. I clerked in 1997-98, and assisted on some panels in which Alito participated. Alito struck me as right-of-center, but very institutionalist. As Judge Garth (who ought to know) said in his Senate testimony, "Make no mistake, he is no revolutionary."

  Second, I think the testimony of Alito's colleagues and former law clerks (of all ideological stripes) is particularly telling. If Alito were in fact a revolutionary, or had a big agenda, surely it would have come out at one point or another: It seems unlikely to me that an agenda-driven judge can keep that agenda secret from his colleagues and clerks for 15 years on the bench. Maybe it's humanly possible, but I don't think it's very likely.

  Anyway, that's my best guess. I look forward to the comment thread.
Marcus1 (mail) (www):
I agree that it's impossible to know how conservative he really is.

From what I saw, he was equally opaque in responding to conservative questioners as he was to liberal questioners. He simply refused to offer any assurances of his political inclinations.

At the same time, this has given liberals good cause to be concerned. To those who listened closely, it was apparent that he was dancing around positions, even extreme positions, without explicitly disavowing anything. For instance, the idea that Congress could withdraw Federal Jurisdiction over the entire First Amendment, or could have withdrawn the Court's jurisdiction to decide Brown v. Board. Even specifically asked, he wouldn't say!

So you're right, we can't know, but that's a bit troubling. I guess it comes down, then, to whether you agree with Biden that the American people have a right to know where a judge stands. In any case, I'm glad you think he's not a right-winger...
1.19.2006 7:26pm
Bobbie:
I wonder what people said about Justice Thomas's philosophy before he was confirmed. Was he refered to as a revolutionary?
1.19.2006 7:31pm
Reg (mail):
Alito will be like Scalia without the sarcasm, and slightly stronger view of stare decisis (he wouldn't vote to overrule Griswold), but there will be many Scalia opinons joined by Alito and vice versa. Roberts will be like Rehnquist, a pragmatist, only he'll be better at building consensus. He'll hide in the weeds till he knows he has the votes to take down a big case, (Casey, Lemon, McConnell) or expand upon some neglected constitutional principle (contracts clause, commerce power, second amendment) and then he'll come out guns blazing.


"the idea that Congress could withdraw Federal Jurisdiction over the entire First Amendment, or could have withdrawn the Court's jurisdiction to decide Brown v. Board"

The idea that Congress could do so is explicitly stated in the Constitution. The Constitution is not a perfect document, and it has never been a judges role to make it perfect. Remember, prior to amendment, the Constitution allowed the federal and state governments to enforce slavery laws, prevent women and blacks from voting, unreasonably seize and search individuals, and so on. Those things were not barred by the Constitution prior to amendment. For some reason, nobody seriously tries to amend the thing to reflect changing concepts of morality anymore. For example, wouldn't it have been better and more secure to get an amendment passed enshrining the right to engage in sex with any other competent, consenting adult, rather than relying on the Supreme Court to make it up?
1.19.2006 7:49pm
Thomas Roland (mail):
Your "educated guesses" are incomprehensible to me, because I have no idea what anyone means when they use the terms "conservative," "moderate," "liberal," left, right, etc.

Does "conservative" as you use it mean "small government," "statist," "federalist," "states' rightist," "libertarian," "individualist," or what? "Conservative" means absolutely nothing at all. All of the above categories of thought or opinion have been historically descriptive of "conservatives" but are to a large extent mutually exclusive. I consider myself to be "truly conservative" and therefore an advocate of freedom from religion, from government intrusion into my privacy including my right to die as I see fit, marriage for couples of any sex or else no marriage at all, a vigorous continuing struggle among the three branches of government to keep them all as honest and restrained as possible (but ALWAYS giving the judiciary the last word on interpretation), and expansion or shrinkage of states rights' dependent on where the various states and the federal government are on those more important principles. I doubt that all other "true conservatives" share all of my views.

So why don't you discuss judges and politicians in terms that make some kind of sense?
1.19.2006 8:07pm
Kent Scheidegger (mail) (www):
For what it's worth, here is my reanalysis of the ten death penalty cases identified in the highly critical ACS white paper.

I find that Alito is not nearly as pro-prosecution as he is portrayed. He voted for the defendant in 4 out of 10. These are all habeas cases, meaning the cases where the defendant clearly had a meritorious claim had already been screened out by the supreme courts of Pennsylvania or Delaware. (There are no New Jersey cases. They are screened out by the supreme court of that state, meritorious or not.)

One of the opinions he has been attacked for, Flamer v. Delaware, was vindicated by the Supreme Court last week in Brown v. Sanders.

In my opinion, his opinion for the defendant in Bronshtein is quite wrong, and I wrote an amicus brief supporting the certiorari petition in that case. Realistically, though, his nomination reduces the chance that the Court will grant certiorari.
1.19.2006 8:14pm
Marcus1 (mail) (www):
Reg,

As to Alito, I'm afraid you might be right.

As far as jurisdiction stripping, you're assuming that the jurisdictional exceptions and regulations clause overrides the judicial power clause, which is a false assumption. I've discussed this a couple times here before, though, so I'd rather not become a one-trick-pony.
1.19.2006 8:20pm
Eric Muller (www):
Orin, two things: (1) what do you make of Alito's writings from the 1980s when he was at DOJ? You have to admit that those have a bit of a (to use your word) revolutionary flavor to them. And those significantly post-dated his clerkship with Judge Garth. (Party on, Judge Garth!) So how do you factor those into your assessment? To my eye, they are rather important counter-evidence to the points on which you rely (that is, your observations of him as a judge and the comments of former co-workers and law clerks).

(2) The perception of Sam's politics by former co-workers is not quite as unanimous as has been reported. (Note: I'm talking about his politics here, not his character, as to which I think there is unanimity for the proposition that he's a smart, earnest, great guy.) I am myself a former co-worker, and I can tell you that even among some of his most vocal supporters there have been raised eyebrows at some of the 1980s writing that appeared.
1.19.2006 8:42pm
dk35 (mail):
Orin,

I'm wondering if you can provide any specifics regarding the the source(s) of the "impressions" you developed of Alito while you were clerking? Are you talking about the tone/substance of certain questions/comments he uttered from the bench during oral arguments? Are you talking about specific opinion(s) he wrote during that time? Are you referring to off-hand comments you (or others) heard him make?
1.19.2006 8:53pm
yo yo yo:
Would Judge Garth consider Scalia or Thomas a "revolutionary"? If not, how is that quote relevant?
1.19.2006 9:00pm
A.S.:
what do you make of Alito's writings from the 1980s when he was at DOJ?

I'd like to know the answer to this, too. Indeed, there are a couple of subissues here. First, to what extent should we think that writings by a person employed by the Justice Department are the person's own legal positions and philosophy, as opposed to "writing for a client"? We know from Roberts' case that, at least where a person is in private practice representing private clients, there is a real objection to using writings taking positions on behalf of a client as a proxy for the person's own positions and philosophy. To what extent does this apply to persons employed by the Justice Department? (Would, for example, Orin say that he personally agreed with everything position he took on behalf of the government when he worked in it?) And, second, how is a general answer to the first question applied to Alito's writing at DOJ?

OT: I also look forward to Orin's reading of the just out White Paper on the legal justification for the NSA program.
1.19.2006 9:01pm
son of lucas (mail):
Watching the hearings, I felt he was well to the right of CJ Roberts. As to his hiding his philosophy. I recall a Washington Post article in which someone mentioned that they didn't realize he was a Republican for months after he met him.

Judge Alito seems the type of person that doesn't flaunt his conservative credentials. I suspect that he finds all forms of activism to be crass. But that doesn't mean the credentials aren't there, or that they aren't deeply ingrained.

I'm confident that we have an incoming justice we'll be pleased with for decades to come.
1.19.2006 9:18pm
JLR (mail) (www):
Many people during John Roberts's hearings were noting his similarities to the Chief Justice he was replacing. However, I have a feeling (and a feeling is all it is, no more or less) that Judge Alito will be the one who will be jurisprudentially most similar to Chief Justice Rehnquist. I could see Judge Alito having decided to be in the majority in Dickerson (reaffirming Miranda ) and Hibbs (upholding the Family and Medical Leave Act in the face of an 11th Amendment challenge from Nevada), just as Chief Justice Rehnquist was. But it's all reading tea leaves at this point.

Also, thank you Mr. Scheidegger for your re-analysis. It is a much needed corrective to a lot of the sturm und drang emanating from liberal interest groups.
1.19.2006 9:22pm
JLR (mail) (www):
One more note -- Chief Justice Rehnquist not only was in the majority of both Dickerson and Hibbs , he wrote the majority opinions. Whether the most senior Justice in the majority would have granted Alito the opinion assignment if those cases had been heard with the nine Justices who will serve on the Court starting sometime by the end of this month (assuming Alito's confirmed) is a counterfactual question and obviously cannot be known. But as I said above, I have a feeling Judge Alito will be the most similar Justice jurisprudentially to Chief Justice Rehnquist.
1.19.2006 9:29pm
SimonD (www):
JLR,
While I'm not necessarily disputing your Alito/Rehnquist analogy, it does seem to me that the Chief's authorship of Dickerson is not necessarily indicative of his view on Miranda having changed. The conservative bloc was going to lose Dickerson, period; thus, the Chief's choices were: either dissent from an expansive reaffirmance of Miranda by Justice Stevens, or join the majority, and write a narrow reaffirmance. It's at least as reasonable to see Dickerson as a tactical move as a change of heart.
1.19.2006 10:26pm
ruidh (www):

First, to what extent should we think that writings by a person employed by the Justice Department are the person's own legal positions and philosophy, as opposed to "writing for a client"?


That depends on whether they are a career DOJ lawyer or a polotical appointee. Political appointees take their jobs because they want to influence the policies of the executive in office. A high level political appointee is there because they are true believers.
1.19.2006 10:33pm
JLR (mail) (www):
SimonD, I agree with your analysis that we can't know whether Chief Justice Rehnquist was voting sincerely or strategically (to use political science terms).

For what it's worth though, I'd like to think though that Chief Justice Rehnquist's Oakeshottian conservatism led him to uphold precedent because of stare decisis . After all, that is the legal reasoning Chief Justice Rehnquist used in the opinion; Chief Justice Roberts even cited Dickerson as a case that helps outline how to revisit Court precedents.
So while we can never know for certain what goes on behind the red velour curtain, I'd like to think Chief Justice Rehnquist voted sincerely.
1.19.2006 10:37pm
A Blogger:
Thomas Roland,

You're not a lawyer, are you?
1.19.2006 11:14pm
Bruce Wilder (www):
How "conservative" is Alito? That's not the right question, at all. The issue is how effective Alito will be in creating a conservative jurisprudence, which is instrumentally useful to a judiciary, which, on the whole, is much more conservative than the country.

If Alito were as radical as Thomas or as loud and aggressive as Scalia, there would be less for progressives to worry about, because then Alito would remain ineffective, for the same reasons that those two are ineffective. Thomas is a "Constitution-in-Exile" poster child, but he has no companions on that road on the Supreme Court, and Alito won't join him; no one will ever join him, because that kind of rigid ideology doesn't want allies.

Scalia has been the champion of conservativism, and is inclined to make belligerant statements on the culture wars, and broad claims regarding his jurisprudential philosophy, but, for all his oft-cited "brilliance", at the end of the day, he's just a blowhard, who votes his gut. One day, his constitution is "dead"; the next day, tradition is what matters; on Wednesdays, it is formalism and textualism. Scalia is a prima donna; admirable, but a stage presence not a mechanic.

Bush has been stocking the Federal judiciary with very conservative judges, but it has had a fairly limited effect, because all the key precedent-setting decisions of the Supreme Court are made by Kennedy and O'Connor. Despite his conservatism, Kennedy's key opinions tend to be sweeping statements of (not to put too fine a point on it) liberal principles -- absolutely repugnant to many (but not all) of the conservative judiciary, while O'Connor's are, often, very narrow and pragmatic, and also useless to ideological conservatives.

It is the nature of the institution, that power is in the hands of the moderates, the justices, who can offer the all-important fifth vote. To move the Court, Alito and Roberts will have to manuver Kennedy out of the middle, and write opinions.

It is not Alito's extremism, which will prove useful to the conservative judiciary, in the end -- it is his technical prowess combined with his unassuming personality. This is the conservative Superman, dressed up as Clark Kent, and his techically-oriented jurisprudence is exactly what a judiciary stocked with conservatives, wants. Well, maybe they "want" the return of the Constitution from exile -- overturning key precedents of the New Deal -- but what they "need" to combat the country's progressivists is a battery of "technical" tools -- not sweeping decisions and principles, against which the country could be rallied by a progressive elected leadership, but, rather, a panoply of tactics, to throw a monkey wrench into all attempts to enact progressive legislation and have it enforced.

Alito's genius is as a technical craftsman. Look closely at Rybar to see Alito's genius at work. In what appears to be only a minor extension of the common practice of looking to legislative history, Alito crafts a revolutionary innovation: a judicial delaying veto!

Alito's dissenting opinion in Rybar is a breathtaking adventure in judicial innovation and the consequences of such a thing as precedent would be devastating. The Courts, over the years, have been steadily ramping up the number of laws they find "unconstitutional" in whole or in part, but Alito would open a whole new field for them. Alito would give Federal judges the authority to send laws back to Congress for a do-over, suspending the effect of laws they do not like, without actually having to find them unconstitutional, but merely suggesting that their legislative history is not up to snuff. And, the capper -- the teflon, Clark Kent part -- is that it can be sold as "deference" to the legislative branch. That's what Alito told DeWine in the Senate hearings -- his Rybar dissent was an example of his willingness to defer to Congress!

Then, there are Presidential signing statements. Another great example of Alito technical innovation, one, which will serve authoritarian judges very fruitfully, no doubt, especially during the terms of Republican Presidents.

It is Alito the technician, Guido the mechanic, who has the great potential to empower the conservative judiciary.
1.19.2006 11:18pm
R. G. Lacsamana (mail):
Judge Alito certainly won't be any Souter, Ginsburg, Breyer, or even Kennedy. Which makes me think he will vote, at least most of the time, as a conservative as most Republicans project him to be. That's also evident from the hearings where he tapdanced around the subjects dear to the liberals - abortion and executive power.

He may not ignite any movement towards actively reversing Roe and Wade, but I feel comfortable he will not engage in any judicial activism.
1.19.2006 11:26pm
JLR (mail) (www):
Just to put very briefly what I've written above: I think Judge Alito, if confirmed, will be, like Chief Justice Rehnquist, an Oakeshottian on the Supreme Court.

(Feel free to learn more about the political theorist Michael Oakeshott by clicking on this link. )
1.19.2006 11:39pm
bluecollarguy:
Whatever else Alito does we can only hope that he joins with Roberts, Scalia, Thomas and Kennedy to put away the dart board when deciding establishment clause cases. Of course that depends on which hat Justice Kennedy is wearing on any given day. But we can hope!
1.19.2006 11:41pm
SimonD (www):
I think a kinder way of rephrasing Bruce's post above might be that Scalia was instrumental in dynamiting the front gate to the Keep of liberal jurisprudence, but it will take a different skillset - that of a new generation who can afford to be less confrontational - to charge into said Keep and capture the King.
1.19.2006 11:42pm
SimonD (www):
maybe they "want" the return of the Constitution from exile -- overturning key precedents of the New Deal -- but what they "need" to combat the country's progressivists is a battery of "technical" tools -- not sweeping decisions and principles, against which the country could be rallied by a progressive elected leadership, but, rather, a panoply of tactics, to throw a monkey wrench into all attempts to enact progressive legislation and have it enforced.
I think this is an inaccurate characterization, certainly to speak for myself. I don't want the courts to be the shock troops of the conservative counterrevolution any more than I want them to be the shock troops of the liberal revolution. The idea of having constitutionalist judges is to fix the old mistakes and prevent new ones from happening. I think it highly suspect that conservatives "need" to take the courts "to combat the country's progressivists" - the continuing decline in the ability of "the country's progressivists" to win elections is taking care of that. However, should - by some magical turn of fortune - that trend reverse, and liberals win back the Congress and the Presidency, the judiciary should absolutely not seek to "throw a monkey wrench into all attempts to enact progressive legislation and have it enforced," any more than it should do the same with conservative legislation. What they should do is to throw a monkey wrench into all attempts to enact unconstitutional legislation and have it enforced. If liberals insist on passing unconstitutional legislation - and if conservatives insist on passing unconstitutional legislation - the courts should throw it out with equal abandon.

I would rather have a Justice who is a textualist and and originalist, who defers to precedent and the elected branches when the original meaning of the text is not dispositive and tradition not overwhelmingly clear, simply because I think that is the most intellectually coherent and defensible theory consonant with a Constitutional democracy. That goes even if my party is out of power and I don't like the new laws. I really don't think it avails us anything if we trade liberal judicial activists for conservative judicial activists: at the end of the day, it hardly matters whether our robed masters agree with us or not - they will still be robed, and they will still be masters. As John Randolph once wrote:
"The people of this country, if ever they lose their liberties, will do it by sacrificing some great principle of government to temporary passion. There are certain great principles, which if they be not held inviolate, at all seasons, our liberty is gone. If we give them up, it is perfectly immaterial what is the character of our sovereign . . . We shall be slaves."
In our haste to correct liberal judicial overreach, we must be careful that be not become as sinning as sinned against.
1.19.2006 11:53pm
SimonD (www):
Incidentally, regarding Rybar and the ghastly exchanges with DeWine and Grassley, I continue to believe that legislative history - like foreign precedent - is an entirely invalid tool in statutory interpretation, and no opinion which relies on it can or should be accorded precedential weight: in my view, such a decision is void, in part or whole.
1.19.2006 11:57pm
bigwhitehat (www):
I think the psychological dynamics of the new court will define Alito as an originalist.

He is not a boat rocker. When in the company of the court, he may lean toward Scalia and Roberts. They are not only charismatic but, will also attract him with their intellect. Alito is also an intellectual and will identify with those two because of this. He will probably take some positions totally out of opposition to Ginsburg and the other dim bulbs on the court.

This same attraction will also lead to a type of competition with Scalia and Roberts as they will all want to impress each other.
1.20.2006 12:04am
David M. Nieporent (www):
Alito's dissenting opinion in Rybar is a breathtaking adventure in judicial innovation
Oh, puh-leaze. Rybar was decided right after Lopez. Not only wasn't it "innovation," but Alito's position followed necessarily from Lopez.
1.20.2006 12:05am
minnie:
Your "educated guesses" are incomprehensible to me, because I have no idea what anyone means when they use the terms "conservative," "moderate," "liberal," left, right, etc.

I agree with those words of Thomas Roland. I had the exact same thought when I read the title post. And I am the kind of "true conservative" (with a strong libertarian streak and most concerned with small government) that Thomas is, agreeing with all of his views except one: I would personally think it completely satisfactory if gays would be allowed to enter into civil unions which give them all of the same legal and social (hospital visits, etc.) rights as married couples. I don't think the word "marriage" needs to be used, because it upsets a large segment of the society, and for no valid reason. I consider the movement to call civil unions "marriages" just another activist tactic to make a point, but in this case, I don't think it's a productive point as it secures for gays no benefits that civil unions would not. If you can "compromise" without having to give up anything, to do otherwise is foolish.

In the Oregon case, I would be dismayed that Roberts signed on with that hyprocrital judical activist, Scalia, except that I have to assume (maybe wishful thinking) that he did that largely for positioning, and strategic reasons. I am one who thinks he is by far the most politically savvy person to have been on the court in a long while, if ever, and he's going to play a poltical game whose goal is to get the results he wants on the big cases. It cost him nothing to sign on with Scalito, in this case, as his vote didn't matter, and he was just starting the process of lining up his ducks in a row.

Whatever Alito is, whatever the label, he's not the kind of person I want to see on the Court. The biggest legacy he is going to leave is his lopsided and misguided support for unconstitutional and unconscionable Executive Power, imo. That, plus his frightening authoritarian nature, and his basically cold heart. Easy to be super nice to all your associates on your way up when your goal is, many years hence, to get on the SC. Who wouldn't?
1.20.2006 12:33am
Bruce Wilder (www):
SimonD raises some excellent points, but I will not be holding my breath, waiting for partisan and extremist Federal judges to behave themselves. I, too, wish for "a textualist and and originalist, who defers to precedent and the elected branches when the original meaning of the text is not dispositive and tradition not overwhelmingly clear, simply because I think that is the most intellectually coherent and defensible theory consonant with a Constitutional democracy." But, I am not naive enough to believe that I am going to get it.

Alito is not at all what I wish for my country. What I wrote about him is what I predict, and part of what I fear.
1.20.2006 12:48am
Bruce Wilder (www):
Nieporent wrote, "Rybar was decided right after Lopez. Not only wasn't it 'innovation', but Alito's position followed necessarily from Lopez."

I've heard this before, and it is utter and complete nonsense to say that Alito's dissent in Rybar followed logically from Lopez. Rehnquist, in Lopez, found a law unconstitutional, with a straightforward finding by the court that the prohibited activity did not substantially impact interstate commerce. Alito wanted to do something entirely different in Rybar; since the act being prosecuted -- the sale of a machine gun at a gun show! -- was, itself, commercial, it would be a stretch to suggest that there was no impact or relation to interstate commerce. In any case, Alito was not willing to judge that issue -- the central issue and basis for Lopez and every other Interstate Commerce clause case before it -- no, what Alito wanted to do in Rybar was to declare a law invalid because Congress had not provided an adequate legislative history. That's an innovation.
1.20.2006 1:05am
Hiya (mail):
"One day, his constitution is "dead"; the next day, tradition is what matters; on Wednesdays, it is formalism and textualism."

No, Scalia is always a textualist, origialinst, and a believer in stare decisis. He could often be clearer as to why he thinks particular lines of cases are deserving of respect and others aren't, but from my own limited viewpoint, it seems like he rejects all 14thA DP cases (except those involving incorporation) because there is no objective principle behind it other than judicial preference and other lines of precedent that rely on generally unworkable and subjective balancing tests.

His critics are often overly simplistic. The Gonzalez/Raich criticism of Scalia for betraying federalism principles is ridiculous. He's had a consistent approach to the commerce clause; in fact, the first thing one notices in reading Lopez is that Scalia didn't join Thomas's concurrence. I don't believe he has ever written anything that should have made his Raich vote surprising. Simply put, he thinks production and consumption are economic activities, and that possession and violence are not economic activities. Sounds right to me. His Gonzalez opinion is a textualist attempt at defining "legitimate medical purpose."

It seems to me that Scalia's critics are more results oriented than he is.
(An aside, the two cases in which I don't buy his reasoning are the defense industry immunity case and Bush v. Gore.)
1.20.2006 1:22am
Nathan Hall (mail):
Bigwhitehat: Would you say Breyer is not an intellectual?
1.20.2006 1:22am
Fishbane (mail):
In the Oregon case, I would be dismayed that Roberts signed on with that hyprocrital judical activist, Scalia, except that I have to assume (maybe wishful thinking) that he did that largely for positioning, and strategic reasons. I am one who thinks he is by far the most politically savvy person to have been on the court in a long while, if ever, and he's going to play a poltical game whose goal is to get the results he wants on the big cases.

(Emphasis added.) With this statement, I do hope the slinging of the phrase "activist judges" is officially over in these parts.

On a different note, I just wanted to hilight the frequency with which people here are using the phrase "constitution in exile", simply as an interesting data point in the ongoing discussion of that phrase. I wonder if David B. has any comment.
1.20.2006 2:04am
VC Reader:

"the idea that Congress could withdraw Federal Jurisdiction over the entire First Amendment, or could have withdrawn the Court's jurisdiction to decide Brown v. Board"

The idea that Congress could do so is explicitly stated in the Constitution.

I don't think your interpretation of the Constitution is correct. Even proponents of jurisdiction stripping don't think that they can remove a court's jurisdiction in order to induce an unconstitutional outcome.
1.20.2006 2:42am
VC Reader:
I should expand on my above post because I don't think I completed my point. In Low and Jefferies leading federal jurisdiction casebook, the authors discuss jurisdiction stripping legislation extensively. They put forth that Marbury stands for the proposition that courts cannot be compelled through lack of jursidiction, to come to a conclusion that is contrary to the Constitution. For example, Congress may be able to deny federal courts the jurisdiction to hear all state criminal cases, but Congress cannot deny jurisdiction to hear due process claims on state criminal cases in which the Court can hear on the merits.
1.20.2006 2:54am
bigwhitehat (www):
Sorry Nathan. January 13, 2005. Scalia and Breyer both showed us that Breyer is a dim bulb.
1.20.2006 3:05am
DaveK (mail):
bigwhitehat:

Whatever you think of the Scalia/Breyer debate and the issues within, neither side came across as a "dim bulb", nor did the debate refute the hypothesis that Breyer is an intellectual.

(Note that my own views on who had the better argument is irrelevant and unstated; even the brightest intellectuals are wrong sometimes.)
1.20.2006 6:16am
Smithy (mail):
My understanding is that Alito is essentially a moderate constructionist. He is far more centrist, than say McConnell or Luttig. Why the Dems oppose him so vociferously is a mystery to me. But it is truly disgraceful that they made his wife cry.
1.20.2006 8:35am
Juan Notwithstanding the Volokh:
If you think Rehnquist's vote in Dickerson (6-3) and Hibbs (6-3) reflected anything more than a power play to put himself in the majority so that he could write a narrower majority opinion than any of the other five would have written, you are mistaken.
1.20.2006 8:51am
SimonD (www):
I can't really agree with bigwhitehat, even though I agree that Scalia made mincemeat of Breyer in the American University debate (transcript), and I really can't overstate how profound an effect that colloquy had on my thinking about foreign law, insofar as Scalia very eloquently put into words essentially what had been on my mind about the issue. But getting cut to ribbons in a debate with Antonin Scalia, especially on an issue where one is asked to defend the indefensible, hardly makes one a dim bulb - indeed, the fact that Breyer even held his own is pretty impressive.

I do agree that if one merely reads the transcript, Breyer doesn't come out looking good. He is very conversational, and when people are conversational, it doesn't transcribe in a flattering way; that compares badly to Scalia, who seems to speak in sentences that come out ready to be sent to the printer. But I really think it does an injustice to a worthy adversary to badmouth Breyer; I don't agree with him, I'm not sure I want him on the Court, but to suggest that "Breyer is a dim bulb" (as opposed to a very bright guy who's simply on the wrong track) is absolutely preposterous.
1.20.2006 9:22am
TSGarp (mail):
I am a libertarian with conservative leanings and I always appreciate the views expressed on this blog because they are almost always well-reasoned and thoughtful (the way civil disscourse should be).

I think all of the comments on Alito have been most interesting, but I am somewhat disappointed that more has not been made of what I consider the most important issue. That is, the overwhelming consensus is that Judge Alito is a very bright man with right of center political leanings and an excellent pedigree for the Court -- who also happens to be a "great guy." Personally, I place primary emphasis on the "great guy" part.

Surely most of the contributors and commenters to this blog have friends who would fairly be described as "conservative" or "liberal" in the contemporary sense of those terms. If we have learned anything over time, is it not that men of good character(or as we have historically described them, "men of good faith") seldom fail us? As to a given case or issue we will invariably be disappointed, but over the long term such men act in good faith and try to do what they believe is right.

Can we ask for anymore than that?

While I would prefer a conservative over a liberal as a broad general rule, if the candidate was someone I knew to be a genuinely good person - and, as Potter Stewart might have said, I think we all know what that phrase means - I don't really give a damn what his politics are.

John Roberts and Sam Alito seem to be perfect examples of the type of person I want on the court, and while I know relatively little about them, I suspect the same might well be said for Breyer, Ginsberg, Stevens and __________ (insert Justice here). I know we have had some bad justices, but all things considered, I think the Court has served us relatively well simply because our founders understood that just as an "invisible hand" guides markets to maximize wealth, an independent judiciary would generally bring out the best in good men.
1.20.2006 10:05am
magoo (mail):
Unless he's a pathological liar, I suspect Judge Alito will not be conservative at all as a Justice. Rather, he'll set aside his conservative political views and conservative policy preferences and apply the law to the facts in as non-political a way as is humanly possible. That's what he said he would so when he testified under oath. It is beyond me why conservatives insist on calling this approach to judicial decision-making "conservative." Plenty of liberals on the bench now and throughout history have articulated and adhered to a similar vision of the judicial role.
1.20.2006 10:52am
SimonD (www):
TSGarp,
I think the good guy thesis - "show us your heart, Judge," as Senators Feinstein, Schumer and Coburn asked, to near-universal derision - overlooks that most of the Judges that got us into the present mess were "men of good character" and "men of good faith." I have many disputes with Bill Brennan's jurisprudence, but I don't doubt for an instant that he "act[ed] in good faith and tr[ied] to do what [he] believe[d] was right." Surely nobody actually thinks that the Court's liberal justices get up every morning and ask their supreme lord Satan what mischief they can work today? These are very smart people who act in good faith to make rulings that they think are making the world better. They are wrong, but they are not bad people.

"Can we ask for anymore than that?" - we not only can, but we must. Good faith and a good heart gets us nowhere unless we understand that person's views on what a Judge is supposed to do.
1.20.2006 11:07am
flaime:
I don't believe anyone can set aside their personal ideology when making decisions. The facts, as we view them, will always be colored by that. It is clear that Alito is far too deferential to the Executive for the comfort of many, and I would include myself in that number. I think that deference is an indication that he is pretty conservative.

The real question is, will he only defer to conservative executives? If so, he will become an ideological hack that doesn't have the privelege of his "principles."
1.20.2006 11:10am
Mr Diablo:
Smithy, Mrs. Alito cried when Sen. Graham was asking her husband rhetorical questions as to whether he was a closet bigot. Tears of joy that someone was defending him, and then running out because approximately NO ONE likes to be seen crying in public.

If it was sadness that made her cry, maybe it was because she had a run in her stockings the size of Chuck Schumer's bald spot while she was on national television, dressed like a 1960s plaid sofa.
1.20.2006 11:32am
Daniellee (mail):
Perhaps your evaluation of Alito properly reflects the man's position prior to the hearings. However, after seeing and hearing for himself the bile that constitutes 100% of the intellectual firepower behind the left's sacred positions, I suspect he is a more reliable right winger now.
1.20.2006 11:38am
Tyrone Slothrop (mail) (www):
Why the Dems oppose him so vociferously is a mystery to me. But it is truly disgraceful that they made his wife cry.

Actually, if anyone "made his wife cry," it was Senator Lindsey Graham of South Carolina, a Republican, though one suspects that she is capable of crying all by herself.

But don't let facts get in the way of a good myth.
1.20.2006 11:57am
Tyrone Slothrop (mail) (www):
No, Scalia is always a textualist, origialinst, and a believer in stare decisis.

Obviously, the benefit of having several principles is that you can go with whichever works best in a pinch.
1.20.2006 12:01pm
SimonD (www):
No, Scalia is always a textualist, origialinst, and a believer in stare decisis.
Obviously, the benefit of having several principles is that you can go with whichever works best in a pinch.
Point of order: textualism and originalism aren't really different principles, in my view. They're the same theory, in the sense that originalism is merely an error-correcting lense that fits over textualism to account for the passage of time: although you will commonly see adherents saying that they beleive in textualism for statutory interpretation and originalism for constitutional interpretation, I think this is a bifurcation. In reality, a textualist would use originalism to evaluate a statute if it had remained on the books since the first Congress, and textualism to evaluate a constitutional amendment passed yesterday.
1.20.2006 12:27pm
Tyrone Slothrop (mail) (www):
Point of order: textualism and originalism aren't really different principles, in my view. They're the same theory, in the sense that originalism is merely an error-correcting lense that fits over textualism to account for the passage of time: although you will commonly see adherents saying that they beleive in textualism for statutory interpretation and originalism for constitutional interpretation, I think this is a bifurcation. In reality, a textualist would use originalism to evaluate a statute if it had remained on the books since the first Congress, and textualism to evaluate a constitutional amendment passed yesterday.

There are the happy cases where you get to be a textualist, an originalist and an adherent to stare decisis all at once. But the hard cases test the distinctions between these principles. Maybe a statute is somewhat unclear, but it's very clear that it's drafters intended a result that is not where the text seems to point. (Happens all the time. Yesterday NPR reported that the DOJ is moving to dismiss pending habeas claims brought by Guantanamo inmates, but Senator Levin, whose name appears on the recent bill terminating such claims, insists that the bill was designed to have only prospective effect.) Or maybe several courts have developed a well-accepted doctrine that appears ill-founded in a statute's text, or in the drafters' intent.

You don't need to worry about which principles you follow in the easy cases. That's what makes them easy.
1.20.2006 12:51pm
SimonD (www):
Tyrone - I think the tension you are imagining between originalism and textualism is because you are using originalism as a synonym for original intent, which it is not. As an originalist, I am not in the slightest bit interested in what the authors of a statute, the constitution, or any other authoritative text intended or meant to write - I am interested in what they did right. See ongoing discussion in this thread, and see here for originalist (i.e. original meaning) criticism of original intent. Original intent is an incredibly minor branch of originalism, and once one understands that practically everyone who describes themselves as an originalist means the original meaning theory, the tension between originalism and textualism vanishes.

I certainly agree, though, that original intent and textualism are incompatible, whcih is one of the primary reasons that practically no one beleives in original intent.
1.20.2006 1:19pm
Tyrone Slothrop (mail) (www):
I appreciate the effort to get us both speaking the same language. But on the larger question, of Scalia's principles, I'll stick to the view that Scalia shifts between multiple principles depending as may be otherwise advantageous.
1.20.2006 1:36pm
ctw (mail):
"the Judges that got us into the present mess"

could you describe "the current mess", not in abstract terms like "judicial activism", "liberal/conservative", etc, but by listing your top (five?) "bad" decisions (not counting abortion). just curious, not trying to make any point.
1.20.2006 3:43pm
bigwhitehat (www):
I have been called to answer for my abuse of the term intellectual. But, nobody questions the use of the term dim bulb.

Hmmmm...... Telling.
1.20.2006 3:50pm
SimonD (www):
I have been called to answer for my abuse of the term intellectual. But, nobody questions the use of the term dim bulb.
Uh - unless you're calling me a nobody, I did.
1.20.2006 5:25pm
DaveK (mail):
I have been called to answer for my abuse of the term intellectual. But, nobody questions the use of the term dim bulb.

Hmmmm...... Telling


Then either you didn't read my response, or I'm "nobody". Either cut out the baseless ad hominem attacks on Supreme Court justices you disagree with, or at least have the decency not to draw false conclusions from nonexistent alleged silences.
1.20.2006 8:53pm
minnie:
Fishbane,

I agree entirely about your point about "activist judges" as relates to my post, and my post was meant as partly ironic because of that exact point.

The reason I wrote what I did is that up until about a year ago, when I started getting interested in Constitutional Law and the Supreme Court, I assumed it was accurate that "conservative" justices generally tended to be originalists and textualists, and liberal justices tend to be judicial activists.

After reading probably billions of words on the subject this last year, I have concluded that is simply not so. It's a myth. All of the justices on the Supreme Court, in my opinion, with the sole exception of Clarence Thomas, use various means to get to the results they want. They can call their approach x, y, or z, but in the end, when you dig through all the rationalizations and citing of case law and blah blah blah, they are going for results and just finding various ways to justify getting to those results.

Since I have come to accept that as a given, I am now one of those who would settle for seeing people on the SC who satisfy three criteria: l) intellectually gifted; 2) compassionate human beings whose morality reflects the spirit of the Declaration of Independence; and 3)likely to want the same results I do.

I think it's pretty clear that Roberts is smart enough to figure out how to craft things to make all his decisions seem reasonable, but that in the end, like the rest of them, except Thomas, he is going to be results driven.

So I am just hoping that the results he wants are fair results that are respectful of both individual civil liberties and the clear meaning of the Constitution when various conflicting interpretations are not intellectually defensible. When it comes to "interpretation", which in the end, is really what SC justices do, I hope that he is also a believer that not all rights that human beings have are enumerated in the Constitution. I would like to see a little natural law, a la Janice Rogers Brown, thrown into the mix.

But I would like to see the concept of "activist justices" bite the dust, as it is a misguided concept and most often misused.
1.20.2006 9:17pm
bigwhitehat (www):
How clumsy of me Simon. You are a somebody.
1.20.2006 10:20pm