President Bush, all is forgiven!
Your most recent move is such a "brilliant stroke," such a "triumph" for all who value limited government, that any blunders you may have made in the past seem insignificant. Yes, now all we must do is sit back and enjoy as the "Supreme Court will turn away from self-worship, back toward the Constitution" and the American people will reap the benefits. And that is because we will soon have a "true constitutionalist" on the bench.
These are not my thoughts, of course, but a paraphrase (with quotes) of a column by 21-year-old neocon columnist Benjamin Shapiro, who could not be more delighted with President Bush’s nomination of Judge Samuel Alito to the United States Supreme Court.
But even if we don’t want to give President Bush that much credit, isn’t Alito a relatively good choice? Isn’t he at least better than the undeniably unqualified professional sycophant, Harriet Miers, and therefore, as the Cato Institute’s Mark Moller has put it, "a step in the right direction"?
President Bush has given us no reason to be anything but skeptical of such claims. So let’s look at Judge Alito more closely via an analysis of Mr. Shapiro’s effusive praise.
Alito and Stare Decisis
Mr. Shapiro writes:
Alito is the judge true constitutionalists have been waiting for. He is no enigma. He reads the Constitution as it was meant when it was written, and he is not afraid to challenge precedent.
Of course, willingness to challenge precedent is a good thing — indeed, it’s essential to being a good Supreme Court justice, given all the atrocious precedents the Court works under today.
But what basis do we have for believing Judge Alito would do this? He has been on the United States Court of Appeals for 15 years, and Court of Appeals judges generally do not have the power to overturn precedents — they just apply them.
Judge Alito could have used his opinions there as a forum to suggest the Supreme Court should overturn some terrible precedents — but I am unaware of (and Mr. Shapiro does not point to) any occasions on which Judge Alito did this.
Instead, Mr. Shapiro’s sole piece of evidence on Judge Alito’s stare decisis views is a 1986 University of Pittsburgh Law Review article in which he says Alito "railed against an 1886 decision of the Supreme Court."
Well, it turns out this law review article is available online — so click this link, but first get the champagne bottle ready, so you can start celebrating limited government’s impending triumphant return.
Or not. The case we are to believe Alito boldly "railed against" was Boyd v. United States — a decision a liberal Supreme Court had already unanimously overturned ten years before Alito published his article. Alito simply listed the "brute force of stare decisis" as one reason, among several, why the Boyd precedent had stuck around for so long.
Indeed, let’s look at Alito’s exact language:
In view of [its] manifest flaws, it is appropriate to ask why Boyd has endured so long. Several reasons may be posited. The brute force of stare decisis bears some responsibility, as does Boyd’s stirring rhetoric.
And that is all Alito says about stare decisis in the entire article. This can hardly be read as a condemnation of stare decisis any more than it can be read as a condemnation of "stirring rhetoric."
(By the way, the Court’s decision to overturn Boyd, which Alito applauds — right or wrong from an originalist perspective — weakened constitutional protection of individuals’ private papers.)
On the other hand, we have much more direct evidence that Alito would leave bad precedents undisturbed.
One of his former law clerks, a leftist, says in this article that, based on her first-hand experiences with Alito, she believes he would be disinclined to overturn precedent, and that his approach would likely resemble that of Chief Justice Roberts, whom Shapiro doesn’t like.
Then there is Alito himself, who in recent conversation with Senator Arlen Specter assured the Senator that he believes in stare decisis and recognizes the "right to privacy" invented in Griswold v. Connecticut, which created constitutional right to birth control and underpins the court’s abortion jurisprudence.
If he believes that decision should stand, then just what would he overturn?
Alito and "Originalist Ideals"
Mr. Shapiro cites Alito’s dissent in the Third Circuit’s Planned Parenthood v. Casey decision as reflecting his "originalist ideals."
There, the court majority held that a Pennsylvania law requiring a spouse to notify her husband before getting an abortion was unconstitutional because it "unduly burdened" a woman’s "right" to an abortion.
Did Alito dissent by saying, "Are you people crazy? Where is there a right to get an abortion in the Constitution, let alone a right to get one without telling your husband?"
No. He simply disagreed with the majority’s interpretation of the words "undue burden," as the decidedly non-originalist Justice O’Connor had used that term in Supreme Court opinions. Whether this was the right thing to do in light of binding Supreme Court precedent, we could debate — but there is nothing remotely "originalist" about it.
In deciding whether one can reasonably call Alito an originalist, let’s turn again to what one of his law clerks has said. Here’s former Alito clerk Nora Demleitner, quoted in the Legal Times:
"He’s not an originalist; that’s the most important thing. I don’t see him saying, ‘As the Framers said in 1789,’ the way Scalia writes his opinions," adds Demleitner, who says she’s a liberal Democrat. "I was listening to one reporter this morning and I thought she was describing Attila the Hun and not Sam Alito."
Many other former clerks and colleagues back up Demleitner’s claims.
As his former clerk, would Miss Demleitner know Alito’s take on the law? Yes. As a liberal Democrat, well-established in her career, would she have any incentive to make him appear more mainstream than he is? No. Has Mr. Shapiro essentially fabricated Alito’s originalist credentials out of whole cloth? You be the judge.
Alito and the First Amendment
Following his discussion of Alito’s "dedication to originalist ideals," Mr. Shapiro enthuses over Alito’s "stellar" record on the "free exercise" and "establishment" clauses of the First Amendment.
In one case, for example, Judge Alito ruled that a police department policy prohibiting beards worn for religious reasons but allowing beards worn for health reasons violated the "free exercise" rights of Muslim police officers.
But where is it in the Constitution that Samuel Alito can dictate internal operating policies of local police departments? It isn’t: at best, it’s part of the court-created "incorporation doctrine" which applies the Bill of Rights to the states via the Fourteenth Amendment. And why must we follow the incorporation doctrine? Not because of anything the Constitution says, but because of stare decisis. So much for originalism; so much for the bold warrior against dubious precedent.
Still, even if we accept incorporation (some originalist libertarians, such as Randy Barnett, do) it is not at all obvious that the First Amendment demands that police departments allow "free exercise" by individuals who voluntarily join them, any more than it requires private-sector employers to do so. The more obvious reading of the First Amendment is that it prohibits Congress from passing any law limiting "free exercise" by people like you and me who have no employment agreement with the government.
But Alito didn’t get into any of that, because his opinion blindly applied Supreme Court precedent.
Again, reasonable minds can disagree about whether this case — and the other First Amendment case Shapiro singles out, in which Alito forced a local school to allow a girl’s artwork to appear on its walls — was rightly decided in light of the Supreme Court’s precedent and the Constitution’s text.
But it remains unclear why Shapiro thinks these opinions are "stellar" — except to the extent he believes they will earn political points with the left.
Alito and State Power
As others have observed, Samuel Alito has spent his entire adult life working for the federal government. Here again is his resume before becoming a judge:
Law clerk, Hon. Leonard I. Garth, U.S. Court of Appeals, Third Circuit, 1976—1977
Assistant U.S. attorney, District of New Jersey, 1977—1981
Assistant to the U.S. solicitor general, U.S. Department of Justice, Washington, DC, 1981—1985
Deputy assistant U.S. attorney general, U.S. Department of Justice, Washington, DC, 1985—1987
U.S. Attorney for the District of New Jersey, 1987—1990
Except for the clerkship, each one of these positions involved nothing but full-time advocacy for maximum federal government power. That’s what U.S. Attorneys do: look for as many ways as possible to put as many people as possible in prison, as often as possible, for as long as possible.
Does that sound like the career choice of someone who would limit government from the bench? Or does it sound like someone who is going to side with government thugs against the individual more often than not?
Consider this passage from a recent Slate investigation of Alito’s decisions:
Alito sat on a dozen panels in which judges disagreed regarding a citizen’s Fourth Amendment rights. In each of those cases, Alito adopted the view most supportive of the government’s position. Alito would have upheld the strip searches of an innocent 10-year-old girl, dissenting from the opinion by the well-known civil libertarian Homeland Security Secretary Michael Chertoff. Alito crossed swords with two Reagan appointees in arguing that a jury shouldn’t decide whether a police officer lawfully allowed his men to push to the ground, handcuff, and hold at gunpoint another innocent family. That case was echoed three years later when Alito, this time writing for a majority, found that in the course of an eviction, marshals could reasonably pump a sawed-off shotgun at a family sitting around its living room.
Given Alito’s apparent lack of originalist credentials, maybe this is why Mr. Shapiro is so enthusiastic about him. After all, Mr. Shapiro is an avowed fan of the police state — witness here his defense of the idiotic and tyrannical New York City policy of randomly searching subway passengers, titled "This is a war, blockhead." He says in concluding that piece:
Myopic civil libertarians ignore the simple fact that effective law enforcement is the best way to promote civil liberties. If we live in a safe, secure country — if we rid ourselves of threats domestic and foreign — there is no need for harsh safety precautions. Habeas corpus was restored after the Civil War. Free speech protections were strengthened in the aftermath of World War I. Japanese internment ended after World War II. Temporary safety measures remain in force only as long as safety is threatened. If civil libertarians undermine such measures, they threaten our safety — and temporary measures become more and more permanent. The only way to fully restore civil liberties is to defeat our enemies.
Benjamin Shapiro and "the greatest president of the 21st century" want conservatives to believe that Samuel Alito is the kind of constitution-respecting originalist we arguably got in Clarence Thomas, or is at least as good as Antonin Scalia (who, by the way, proved himself to be not much of an originalist at all in his Raich v. Gonzales opinion allowing the federal government to prohibit medical marijuana use under the Commerce Clause).
The evidence, we have seen, does not support these claims. Instead, the evidence shows Alito to be exactly the sort of judge we would expect George W. Bush to appoint: in the words of his Princeton classmate Judge Andrew Napolitano, "a big government conservative who will almost always side with the government against the individual, and the federal government against the state."
There will be a lot of fighting in Washington over Alito, and it will probably involve Democrat Senators saying a lot of infuriatingly stupid things about the Constitution and the role of the Supreme Court. But, whatever they may say, let’s resist the temptation to join the fray — Judge Alito is not even close to being worthy of our efforts. I don’t know if Alito will be confirmed — but given his lifelong commitment to the federal government, I suspect he will. I am certain, however, that regardless of who wins the political battle, liberty will lose.