More on Alito

I came across two interesting pieces about the Alito nomination that I think are worth a recommendation.

The first is by John Hinderaker at Powerline, addressing Alito's dissent in the Casey decision and what it may or may not tell us about what type of Justice he would be:

If you are an abortion opponent and read Alito's dissent, you will likely be disappointed. It is technical and dispassionate; the issue on which Alito differed with his colleagues was whether the notification requirement constituted an "undue burden" on the right to abortion, under the Supreme Court's jurisprudence as it then existed. The opinion conveys no hint of Alito's own views on the topic of abortion, or even of his opinion as to how (if at all) the Constitution should bear on the subject of abortion. Rather, and somewhat ironically, his dissent is an effort to follow the twists and turns of Justice O'Connor's various opinions on the topic of "undue burden," and apply them to the record before him. The most one can fairly say, I think, is that Judge Alito's dissent in Casey does not evince any reflexive hostility to restrictions on abortion, and does reflect what most conservatives would regard as an appropriate deference to the legislature's role as arbiter of public policy. Anyone looking for the sort of fiery language that sometimes enlivens, say, Janice Rogers Brown's opinions, will be disappointed.

A judge on the Court of Appeals, like a District Court judge, takes Supreme Court jurisprudence as he finds it. His opinion as to whether the Supreme Court's rulings are right or wrong is entirely irrelevant. His duty is to apply the relevant Supreme Court decisions to the case before him, as best he can. Thus, in an area like abortion where Supreme Court precedent is relatively plentiful, reading an appellate judge's opinions is like reading tea leaves: one is unlikely to pick up more than obscure hints as to the judge's own views.

The other piece is by Norman Ornstein of AEI, in Roll Call, writing about Alito in comparison to Chief Justice Roberts:

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito’s dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We’re talking machine guns.

Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito’s colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce--and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the “Constitution in Exile.” Whatever it is, it’s not judicial restraint.

Roberts is a very conservative guy, and a strict constructionist--one who means it. He understands that Congress is the branch the framers set up in Article I, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article II, which created the executive branch, and almost four times as long as Article III, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively.

I share much of this view of legislative primacy in the Constitution (it is reflected in my disagreements with Bibamus in the last post's comments, for example). I would like to see more examples from Alito's rulings to figure out how much of an issue this should be in his confirmation.

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