Despite initial intentions not to write too much about Samuel Alito I find myself resolved to tackle a couple of issues in relation to him this morning. They mostly arise from conversations I’ve had elsewhere (notably
here) where people are amazed that I believe he’s a good nominee. To my mind there are two things to look at when considering whether someone would make a good Supreme Court justice: qualifications and ideology.
From the perspective of qualifications there’s simply no opposing Samuel Alito. Not only is his academic CV impressive but the reasoning that he employs in his decisions is excellent – it’s the kind of reasoning we try to teach students in classes on legal methodology: sharp, direct, traceable, rational and always limited to what it is necessary to consider for the particular case. People sometimes underestimate the importance of someone’s capacity to reason well as a judge but in fact it’s a vital consideration because it shows whether or not someone lets their ideology and beliefs override the law as it stands. I don’t believe that Judge Alito does that; the reasoning in his cases certainly doesn’t allude to it. Compare his much talked about decision in
Planned Parenthood v Casey (Supreme Court decision
here; 3rd Circuit decision
here) to the decision of O’Higgins J. in the Irish Supreme Court in
Norris v Attorney General if you want to see examples of flawed reasoning resulting from ideological belief. Here’s a flavour of the Norris decision:
[T]here is probably a large number of people in this country with homosexual tendencies. Of these, however, only a small number are exclusively homosexual in the sense that their orientation is congenital and irreversible. It is this small group (of those with homosexual tendencies) who must look to the others for the kind of relationship, stable or promiscuous, which they seek and desire. It follows that the efforts and activities of the congenital must tend towards involving the homosexually orientated in more and more deviant sexual acts to such an extent that such involvement may become habitual. The evidence in this case and the text-books produced as part thereof indicate how sad, lonely and harrowing the life of a person, who is or has become exclusively homosexual, is likely to be.
Of course
Planned Parenthood v Casey has received much attention because of Judge Alito’s decision relating to abortion in the case and this treats of the second important consideration: ideology. It is, of course, unrealistic to expect that a Supreme Court nominee (or anyone else for that matter) would be free of any ideology or belief system that influences their views on things. While formalists have long maintained that judges are objective and take only ‘the Law’ into account when forming opinions,
realists, including former Supreme Court justices like
Oliver Wendell Holmes, disagree (for a good summary see
Leiter on Realism). They accept that because judges are people they can not be expected to shrug off the experiences of life and those that have formed their life view upon entering the court room. What they can be expected to do, however, is ensure that their belief systems do not operate extensively on their decision-making processes.
Judge Alito’s decision in
Casey has been largely misinterpreted. In fact he more or less agreed with the majority in the decision; the disagreement centered on whether the requirement to notify a husband of a planned abortion constituted an “undue burden” to accessing abortion. The majority felt it did and therefore had to pass a test of serving a “compelling” state interest. Alito felt it did not and therefore had to pass a test of serving a “legitimate” state interest, although he agreed that if it were the case that it was an “undue burden” it would be “constitutionally doubtful” (p. 107 of the judgment). At no stage in his judgment does he give any indication of being pro- or anti- abortion; he simply applied the law and, in that way, showed himself to be pro-law.
The same was true of his (not very often considered) decision in
Planned Parenthood v Farmer in which partial-birth abortions were considered. Here the 3rd circuit had written their opinion striking down later-term abortions but before they delivered it the Supreme Court struck down a similar statute in Nebraska. Instead of re-writing the opinion to base their striking down of partial-birth abortions on precedent the court simply added a new introductory paragraph, but Judge Alito insisted on writing his own opinion on this case in which he very clearly stated that he was striking down partial-birth abortions on the basis of Supreme Court precedent. This is significant because he acted as an appeals court judge should: he based his decision on decided law. He did not base it on any opinions he had on whether partial-birth abortion was somehow better or worse than abortion per se.
I do not join [the majority] opinion which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result of this appeal, namely, the Supreme Court’s decision in Stenberg v Carhart [citation removed]. Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent. (p.p. 74-75)
It’s not surprising that a lot of liberals are talking about Judge Alito without mentioning Farmer or indeed the many cases in which he vindicated minority religion rights and expanded the grounds upon which someone can be granted asylum, especially on the basis of issues relating to gender and sexuality (see
Ann Althouse’s Op Ed in the New York Times for more on this). By looking at these decisions we are forced to realise that Alito is not the far-Right ideologue some fear. Yes he’s conservative and yes he’s traditional but he’s traditional in more than just his values: he’s traditional in his concept of what a judge’s role is: the interpretation and application of law without allowing that role to be over-clouded by personal beliefs or excessively influenced by interest groups and lobbyists.
I may not agree with Samuel Alito’s beliefs on many things but I am impressed by his capacity not only intellectually but also judicially. Will he signify a swing to the Right? Possibly – he’s certainly more right than Sandra Day-O’Connor but I’m not at all sure John Roberts matches Rehnquist’s rightism so I’m not sure the balance has swung that much. Is he a strict constructionist? Yes, although his interpretation is literal and not historical: this is something to be glad of. Would he be a fair and balanced arbiter on the Supreme Court bench? I believe so.
LinksFor more on Alito and tech issues go to
ZD News; For more on Alito and abortion (and marriage) go to the
New York Times; For more on Alito and international law go to
this,
this,
this,
this and
this on Opinio Juris; For more on Alito and deference to government go to
the Guardian; For a comprehensive collection of Alito’s judicial and academic writings go to the
University of Michigan Law School’s Alito Page; For more on the Alito/Scalito theme see
Althouse generally and
Akiba Covitz
