The liberal blogosphere, my peers and mentors, my sources of information and my sources of entertainment, are proving embarrassing in their reflexive
attempts to excoriate the nomination of the Honorable Samuel Alito to replace Justice O'Connor on the United States Supreme Court. See this comment
, collecting links (not every link necessarily contains an example, but several do.)
So hasty are they to imagine that a nominee perceived as adequate to mollify the far right in fact should
be a mollifying nominee to the right that they are missing clear signals to the contrary. Their fears may prove justified. And in a more abstact sense, I share those fears. Nothing that follows should be read to suggest otherwise.
And it's not just the bloggers -- Slate's legal commentator, Dahlia Lithwick, darling of the left and straightshooter as well as she voted most-likely-to-be-the-subject-of-a-not-so-secret-crush-by-law-geeks-like-me-who-don't-even-know-what-she-looks-like, is one of the biggest culprits with a dubious drive-by embedding a number of questionably pejorative interpretations of his decision in a single convenient paragraph in this piece
. Et tu, Dahlia
? (See also Bazelon, Emily
, but I don't have as much of a crush on her so it hurts less.)
Anticipating what a judge will do vested with lifetime tenure and an end of all direct beholdenness to others, having attained the pinnacle of his profession, has proven an entrely dubious enterprise. I don't pretend to know how Judge Alito would rule on any pet issue of mine. And anyone who does might as well be reading tea leaves for all the guarantee the traditional extrapolative endeavors furnish. But it's simply reckless and discrediting to willfully, or ignorantly, misconstrue his rulings in an effort to reinforce one's worst assumptions about the motives and effects of the nomination.
The title of this post is somewhat misleading. I don't have the time to scrutinize the many thousands of words being spilled in the process of smearing Alito with any substance close to hand, nor to read the hundreds of opinions he's authored as a circuit judge. But I'm operating on a basic principle -- if I can find one central reckless misreading (or non-reading, as is obviously all too often) of an Alito opinion by a given commentator, lawyer or otherwise, than I can no longer rely on that commentator's analyses of any of his other opinions.
Unless I run out of bile, or choke to death on my tears (there are some real disappointments to follow, shaking my faith in some of my favorite weblogs), the following discussion will leave me few of my traditional guiding lights on whom to rely, which saddens me. In this one instance, at least, the blogosphere, the supposedly self-correcting enterprise that lives to point out the fallacies that infect soundbite politics and the mainstream media, proves no wiser, no more rigorous, than those ideological tools it so reliably excoriates.
Pull up a chair. This is going to take a while.
A few prefatory caveats:
1. Politically, I am largely left of the mainstream Democratic party, something regular readers are unlikely to contest except, perhaps, as to isolated issues. Believe me. Don't. The fact remains, and there is a year of archives here to support my proposition.
2. As a consequence of (1), I would not nominate Alito to the Supreme Court had I the power. Whether he's a leading light of the right, or merely a moderate and restrained jurist, he does not interpret the constitution with the flexibility I believe that enterprise requires in a rapidly changing world.
3. Some of the misreadings identified below arise, unsurprisingly, from the fact that many prominent commentators lack legal training. Granted, judicial opinions ought to be accessible to laypersons, and many are. Consequently, non-lawyers certainly are not precluded from commenting on these matters; indeed, the polity for its vibrance depends on such conversations. That said, there are certain legal issues that elude reduction to a few simple sentences or an elegant syllogism. Predictably, I have found it is with regard to these cases that the commentariat is most unreliable. Unfortunately, even with those cases that appear fairly straightforward, there tend to be critical nuances that are non-obvious, and significantly alter the landscape of what's written and what the writing suggests about the opinion's author.
4. What's worse, the prominent non-lawyer bloggers who make mistakes (or who willfully manipulate Alito's words to create a false portrayal) tend to be those bloggers most frequently quoted by the inchlings, like this humble writer, and the echo chamber turns misreadings into gospel all too quickly.
5. Vanity Note: For those I haven't already told, and I've told many (who wouldn't), I had the, er, pleasure of interviewing for a position in Judge Alito's chambers a couple of years back. He did not offer me the position, and the interview was somewhat unpleasant, all things considered. So if anyone has an ulterior motive to bash him, it's poor, jilted me.
6. I mean no disrespect to anyone singled out for criticism here (Bitch Ph.D., on whose convenient list I principally rely, in particular). I intend, however, to make my little contribution to the error-correcting function of the blogosphere noted above, in any area where I have the background, wherewithal, and inclination to do so.
Now, there is so much already out there that I could begin almost anywhere. But certain cases have pinged loudest on the left's ever-vigilant radar, and Bitch Ph.D.
, a blogger I generally regard very highly, perhaps inadvertantly catalogs them well. So we'll begin with her list
. In what follows, blocks of italicized text designate direct quotations from her weblog.1. He opposed Americans' ability to sue state employers for violating the Family & Medical Leave Act. Work for state government? Tough shit, no unpaid leave for you if you have a baby or your husband gets cancer.
The case in question is Chittister v. Dept. of Community and Economic Dev.
. Judge Alito authored the opinion for a unanimous panel. In that case, the court was faced with the question
whether Congress validly abrogated the states' Eleventh Amendment immunity when it enacted provisions of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. SS 2601-54, that require a broad class of employers, including states, to provide their employees with 12 weeks of leave "[b]ecause of a serious
health condition that makes the employee unable to perform the functions of the position of such employee" and that permit employees to sue in federal court for violations of the Act. We agree with the District Court in this case and with the other Courts of Appeals that have considered this question that Congress did not validly abrogate the states' Eleventh Amendment immunity when it enacted these
I start with a disclaimer: this case exceeds the ambit of my full scrutiny; I simply lack the time to compensate for my lack of expertise in this area. Fortunately, one respected (if by no means universally liked) commentator has taken the time to explain the holding -- in particular, its limited scope. Law Prof Ann Althouse took up common misunderstandings about the scope of this ruling here
and, when that proved insufficient, revisited the case's subtler points a second time
The critical aspect of her discussion is found in the second of these two posts, an essentially irrefutable rejection of Dr. B's flippant misreading: "Work for state government? Tough shit, no unpaid leave for you if you have a baby or your husband gets cancer." As Althouse observes, "[D]enying the existence of Fourteenth Amendment power would not make the FMLA unconstitutional. It is independently supported by the commerce power, even for state employees.
" Althouse explains that Chittister
's effect was not to obviate FMLA's protection for state employees, but rather to deny them access to retrospective relief under the Fourteenth Amendment.
She may not be entirely right, but she's almost certainly right about the Fourteenth Amendment / Commerce Clause distinction, and thus she also appears to be right that someone at Daily Kos, Senator Barbara Boxer on the Daily Show, and Law Prof Pam Karlan on the NewsHour with Jim Lehrer were patently wrong in essentially concurring in Dr. B's brief assessment.
Read her posts for more nuanced discussion; I'm not nearly qualified enough to parse the details. I am, however, bright enough to recognize that her anlysis is legally robust (see also PointOfLaw
.), and, while I'd be happy to be corrected on this, (see caveat 2, supra
), Technorati does not yet disclose an effective rebuttal.
ASIDE: Legitimate questions pertaining to the Eleventh Amendment lurk in this case, and I'm not even sure I'm smart enough to describe them accurately. Certainly, the Eleventh Amendment was reinvigorated -- and many would say to the detriment of disadvantaged parties -- by the Rehnquist Court, and there's nothing to suggest things will be different under Roberts' leadership. But these are not
the aspects of this case the commentariat is focusing upon; instead, they're sticking with demonstrably false statements suggesting that the case decides far more than it does. 2. * * * [Alito] also argued that Congress doesn't have the right to regulate ownership of machine guns under the Interstate Commerce Act; apparently he believes that machine guns don't cross borders, people carrying machine guns cross borders.
Again, flippant but flawed on two levels: First, in his dissenting opinion in United States v. Rybar
, 10 F.3d 273 (3d Cir. 1996) (Alito, J., dissenting) [If no link to a case appears, it either means that Findlaw doesn't have the case or is somehow not showing the case properly; in the interest of expedience, I revert on such occasion to Westlaw, which most of you don't have access to. Google should be good for you folks; law schools and other sites often contain the text of opinions], Judge Alito simply did not contend that "Congress doesn't have the right to regulate ownership of machine guns under the Interstate Commerce Act." Indeed, he paid the courtesy of explaining the consequences he perceived of his argued-for position:
[My proposed ruling] would not preclude adequate regulation of the private possession of machine guns. Needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession . . . . Moreover, the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element--a common feature of federal laws in this field and one that has not posed any noticeable problems for federal law enforcement. In addition, as I explain below, 18 U.S.C. § 922(o) might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link. If, as the government and the majority baldly insist, the purely intrastate possession of machine guns has such an effect, these steps are not too much to demand to protect our system of constitutional federalism.
His problems with the challenged statute, that is to say, are not sweeping, not constitutionally inexorable -- they are technical, and lead directly to my second objection to Dr. B's formulation.
Roughly one year before the court of appeals issued its opinion (along with Alito's dissent) in Rybar
, the United States Supreme Court issued its decision in United States v. Lopez
, determining that Congress lacked authority to pass the Gun Free School Zones Act because the Act facially criminalized intrastate activity and was too attenuated from any empirically demonstrable (or, at any rate, demonstrated
) tie to interstate commerce.
If the statute in question was indistinguishable in material part (that is, in the regards that the Supreme Court identified in striking down the statute) from the statute in Lopez
, the court of appeals would have no choice but to invalidate the law at issue in Rybar
. Alito based his ruling solely upon his belief that Lopez
governed, and surely his reasons for believing so are defensible.
The statutory provision challenged in this case . . . is the closest extant relative of the statute struck down in Lopez, which made it a federal offense knowingly to possess a firearm in a school zone. Both are criminal statutes that regulate the purely intrastate possession of firearms. Both statutes, departing from the mold of prior federal criminal statutes governing firearms possession, lack a jurisdictional element, that is, they do not require federal prosecutors to prove that the firearms were possessed in or affecting interstate commerce. And in passing both statutes, Congress made no findings regarding the link between the intrastate activity regulated by these laws and interstate commerce. If Lopez does not govern this case, then it may well be a precedent that is strictly limited to its own peculiar circumstances. That may be what the majority here would like, but our responsibility is to apply Supreme Court precedent. That responsibility, it seems to me, requires us to invalidate the statutory provision at issue here in its present form. [citations and footnote omitted]
I don't have to agree with him or the Court's decision in Lopez
to find in this something less than the gleeful gunplay-in-schools ruling that Dr. B finds. As is often the case in decisions like this, Judge Alito is even kind enough to chart a path for Congress to pass a statute, indistinguishable in effect from the one in question, that likely would pass constitutional muster. This dissent derives from a narrow, technical dispute, and turns on a facially faithful reading of Lopez
. There's nothing terribly offensive here -- or rather, if there is, feel free to blame the Rehnquist Court, because the fault lies with them.
(Julian Sanchez doesn't get it
and neither does Steve Clemons
; and Jacob Sullum .questions
whether this opinion really reflects Alito's inclination regarding the Commerce Clause to begin with.).4. As everyone and their 10-year old knows by now, he wrote a dissent arguing that it's perfect[ly] constitutional to strip search a 10-year old girl if you have a search warrant for an adult man.
I've already discussed
Judge Alito's dissent in this case, Doe v. Groody
, over at Bloodless
, and what follows is merely an adaptation of those comments.
In Doe v. Groody
, the panel majority denied police qualified immunity for claims arising from their strip search of occupants found in a house for which they had a search warrant. The warrant form on its face did not identify the complainants as objects of the search. The affidavit in support of the warrant, however, in detail explained the frequency with which drug suspects use bystanders to secret drugs away to avoid detection, and expressly requested authorization to search all occupants found in the house at the time of the search. That affidavit, as well as the warrant form to which it was attached, was signed by the issuing magistrate without emendation or reservation. The entire document, form and affidavit, was on-hand to the parties occupying the house upon execution of the warrant.
The majority, relying upon the United States Supreme Court decision in Groh v. Ramirez
, found that the failure particularly to designate the searched parties, or alternatively to incorporate by reference the attached affidavit in the warrant form's box for identifying the places or persons to be searched, was dispositive against the constitutionality of the search, and moreover was a sufficiently obvious problem to require obviation of the police officers' qualified immunity.
, however, the warrant form in question nowhere on its face incorporated the supporting affidavit by reference, while in Doe
the warrant form's section discussion probable cause expressly incorporated the supporting affidavit by reference. In Groh
, the affidavit in support of the warrant was placed under seal, and thus was unavailable to the parties subject to the search; in Doe
, however, that affidavit was part and parcel of the warrant, and was available to the parties.
As the Court in Groh
observed, the principle reason to require a detailed warrant be on site at a search is so that the parties subject to the search have a basis from which to derive the ambit of the warrant and thus to protest the search should it exceed those bounds. With the affidavit under seal, the searched parties in Groh
were left to rely on the police officers' assurances as to the proper scope of the search, a constitutionally intolerable condition. Such was not the case in Doe
In my opinion, at least at first blush, Alito read Groh
more persuasively, more faithfully, than did the majority. That doesn't make Groh a good or a bad case, but that wasn't for the court of appeals to consider. The majority played looser in its application of that case than did Alito in distinguishing it. And even if it hadn't, I'd still be loath to ascribe to Alito, based on this opinion, any particularly draconian view of the Fourth Amendment, or comfortably wield the soubriquet, "Strip Search Sammy," which to me is merely emblematic of the epigrammatic approach to (or surrogate for) intellectual criticism of Alito's position in this case.
Furthermore, any discussion of Doe
that doesn't acknowledge that the case concerned police officer qualified immunity, to obviate which one must show more than incidental or unknowing misconduct, is insufficient on its face. Qualified immunity implicates entirely separate concerns than a hearing seeking suppression of the evidence secured under the authority of a flawed warrant. Only where the warrant lacks a clear, facial flaw sufficiently obvious that a police officer without legal training should know it cannot stand, will that officer lose qualified immunity, a standard wholly separate from that which applies in the less forgiving suppression context.
To omit this distinction is to leave out a crucial piece of the puzzle and to comment irresponsibly. A warrant sufficiently deficient to result in suppression of the evidence secured under its ambit is not sufficient to obviate qualified immunity; indeed, the inquiries differ enough that it might not be a necessary condition, either (although necessary is more likely than sufficient). Sadly, this critical deficiency is evident on the face of critiques penned by the usually diligent Majikthise
and Scott Lemieux
, on whom, in Lindsay's defense, she may well have relied (as she cites him and materially tracks his criticism).
Moving right along, we reach5. He reversed a decision that found that a school regulation against “verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment" was constitutional. That is, schools can't have a rule prohibiting students from calling each other "fag," "cunt," "dirty Jew," "gook," and so forth to such a degree that the bullied kid is afraid to go to school.
This, too, misstates Judge Alito's opinion in the case in question, Saxe v. State College Area Sch. Dist.
, which he wrote without dissent for a panel unanimous in all but one minor regard prompting Judge Rendell's brief concurrence. While Dr. B. accurately quotes parts of the rather convoluted and long-winded policy involved, her pithy summary regarding what rules schools can't enact is at best misleading, especially to the extent she claims that this ruling wouldn't even allow a policy that restricted such conduct when it rendered a student "afraid to go to school."
Indeed, this misstatement is ironic given that Alito's determination that the policy in question was overbroad (a constitutional term of art) inhered in substantial part in the fact that in its sweep the policy did not only reach speech that in fact
rendered students fearful, but by its terms also reached speech merely intended to have that effect, a conjectural and contingent protection Alito demonstrates by reference to voluminous United States Supreme Court precedent the law has never afforded against discomfiting speech. Moreover, note that I used "speech" in the refutation immediately foregoing, while Dr. B. used "conduct." The speech-conduct distinction critical to the First Amendment context also lies at the very heart of Alito's ruling, and the casual conflation of the two by Dr. B. reflects a lack of appreciation of the nuances of the case.
Judge Alito's opinion rejected, first, the district court's ruling that there is a "categorical harassment exception" to the First Amendment's free speech clause, and noted, furthermore, that much of the speech fairly encompassed by the policy would not constitute actionable harrassment under federal or state law. This was critical to the court's analysis of the district court's ruling, which in turn lies at the heart of the court of appeals' assessment of same in its capacity as an error-correcting court. Basically, the district court ruled that the policy merely prohibited speech already prohibited by federal law, and therefore could not violate the First Amendment.
The federal law on which the district court relied, however, encompassed only the familiar categories of prohibited discrimination: race, color, national origin (Title VI); sex (Title IX); and disability or age (Rehabilitation Act of 1973). The policy, by comparison reachd far further. And here I rely on a long passage from Alito's opinion:
We do not suggest, of course, that no application of anti-harassment law to expressive speech can survive First Amendment scrutiny. Certainly, preventing discrimination in the workplace -- and in the schools -- is not only a legitimate, but a compelling, government interest. And as some courts and commentators have suggested, speech may be more readily subject to restrictions when a school or workplace audience is "captive" and cannot avoid the objectionable speech. We simply note that we have found no categorical rule that divests "harassing" speech as defined by federal anti-dscrimination statutes, of First Amendment protection.
This passage, it's worth noting, followed an extremely long, painstaking rejection of the district court's sloppily stated claim, the error of which was asserted on appeal. Crucially, in the subsection of the opinion immediately following, Alito hit the crux of the problem:
In any event, we need not map the precise boundary between permissible anti-discrimination legislation and impermissible restrictions on First Amendment rights today. Assuming for present purposes that the federal anti-discrimination laws are constitutionally in all of their applications to pure speech, we note that the SCASD Policy's reach is considerably broader.
For one thing, the Policy prohibits harassment based on personal characteristics that are not protected under federal law. * * * * The policy, in contrast, is much broader, reaching, at the extreme, a catch-all category of "other personal characteristics" (which, the Policy states, includes things like "clothing," "appearance," "hobbies and values," and "social skills"). Insofar as the policy attempts to prevent students from making negative comments about each others' "appearance," clothing," and "social skills," it may be brave, futile, or merely silly. But attempting to proscribe negative comments about "values," as that term is commonly used today, is something else altogether. By prohibiting disparaging speech directed at a person's "values," the Policy strikes at the heart of moral and political discourse -- the lifeblood of constitutional self government (and democratic education) and the core concern of the First Amendment. That speech about "values" may offend is not cause for its prohibition, but rather the reason for its protection: "a principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." [emphasis mine]
From there, Judge Alito clarifies that schools may enjoy greater rights to regulate speech than other institutions, but notes the countervailing hornbook principle of law that students do not leave their constitutional rights at "the schoolhouse gate." He then proceeds, with tremendous care, to consider whether there is a more restrictive reading of the Policy under which its patently overbroad provisions can be understood to be sufficiently limited to survive constitutional scrutiny. But as any law student in his second year can tell you, overbreadth is a bitch, and if you write what amounts to a speech code you'd be wise not to include elastic clauses that tend to encompass whatever the least durable denominator can stand. The Policy in question, however, was addled with unbounded elastic clauses; read plainly, they were totalitarian in scope.
This case is unusually easy for me because I actually firmly agree. I suspect that many of the people who get into these debates online, like I did, tended to be the brunt of the sorts of things SCASD endeavored in its policy to proscribe. But I wouldn't trade freedoms for some sort of invisible hand ensuring I never had to hear the critiques that helped me learn to get along in the world. There's no doubt in my mind, nor little room to doubt from Alito's opinion, that narrowly crafted codes designed to preclude systematic verbal harassment based on the areas protected by Titles VI and IX can survive constitutional muster. But the Policy here in question was anything but narrowly crafted.
What amazes me is that by failing to catch the critical "values" passage, lefty commentators unwittingly appear willing to deprive their students of the right to stand up for themselves to express thoughts critical of whatever curriculum constitutes orthodoxy at a given school district, given that to do so will almost invariably offend the "values" of some other student in the room. Virtually any form of legitimate dissent on a fair reading would have violated the Policy. That's the very sort of broad prior restraint the First Amendment simply doesn't allow; its also the sort of thing utilized, where it's permitted, to squelch unpopular viewpoints and dissent generally.
If that's what people want for their kids, there's always Catholic Schools. But I don't believe conformity of any sort prescribed from on-high is how you raise informed and empowered citizens; nor do I think the futile effort to protect children from all offense for the duration of childhood prepares anyone for the gauntlet of adult life.
Returning to Dr. B's problematic speech-conduct conflation, Judge Alito wrote:
There is of course no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause. But there is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs. When laws against harassment attempt to regulate oral or written exprssion on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications. [citations omitted; emphasis in original]
There are a few cases enumeratd by Dr. B. that I've omitted due to constraints on my time and energy, presumed limitations on reader patience, and the competing goals of actually proofing this once and getting it out before I go to sleep (and preferably in bed and not sprawled over my keyboard (I've already given up on having a real dinner; the things I do for you people)). As I said at the outset, sources that serially misstate the cases in question, or unwittingly rely on others who do the same, need only commit that offense once or twice to call into question their credibility in other analyses. I might come back to those cases Dr. B mentions later, but for now I'm going to end on a short discussion of a more preposterous misrepresentation that, thankfully, can largely be refuted in Alito's words rather than my own.9. He agreed, reluctantly, that a lawsuit for wrongful death in the case of a stillbirth should be dismissed, since New Jersey law prohibited such suits; but in so doing, he noted that the fact that case law distinguished a "fetus" from a "person" was "unfortunate."
Before I even begin, I note that Dr. B doesn't cite the case, but rather some registration-required opinion piece in the Twin Cities Pioneer Press
. But in this case she so utterly misrepresents the case that I need hardly even explain the majority to demonstrate the mendacity of the claim, especially her proposition following the last semi-colon which simply misquotes Alito in misleading fragments. (Ironically, Dr. B and others tend to refer to Alito as straining to interpret things to his liking; contrariwise, I find most of the strain evident in the hasty criticisms of his work circulating around the blogosphere, and this case is merely the most obvious example.) Here is Alito's entire concurring opinion
in Alexander v. Whitman
, the case at issue:
I am in almost complete agreement with the court's opinion, but I write to comment briefly on two points. First, I think that the court's suggestion that there could be "human beings" who are not "constitutional persons" is unfortunate. I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a "person" within the meaning of the Fourteenth Amendment. However, the reference to cosntitutional non-persons, taken out of context, is capable of misuse.
Second, I think that our substantive due process inquiry must be informed by history. It is therefore significant that at the time of the adoption of the Fourteenth Amendment and for many years thereafter, the right to recover for injury to a stillborn child was not recognized. [Citations omitted]
That's it. That's all. Simply put, he does not characterize as "unfortunate" the clear constitutional rule denying personhood to a fetus. Rather, he objects to a particular terminological game played by the majority in its effort to address fairly even the claimant's most dubious argument, relying on claimant's unsupported demand that the court recognize her fetus as "human," a term devoid of legal meaning in this context (hence Alito's cautionary note), from conception forward.
Now I will pause to observe something else of critical importance in this case: the majority, in rejecting the claimant's substantive due process claim that New Jersey had violated her fundamental right in denying her the right to maintain a lawsuit in her claimed capacity as executrix of the estate of her stillborn child, cited Roe v. Wade in its most expansive reading
chapter and verse -- like it was its job
. And this, this unnecessarily broad reading of Roe
, is what Judge Alito plainly joins without cavil
There's an additional note: the stillborn fetus in Alexander
registed healthy vital signs a mere fourteen minutes before its birth at the end of its natural term. This is notable for one reason: at that stage of pregnancy, we are far afield of Roe's
rigid trimester framework and Casey's
viability variant. That is to say, just prior to birth, states are entirely free to ban abortion entirely. If Alito were looking for a reason to distance himself from the majority ruling, or to assert the personhood of the fetus in question under the circumstances at bar, and argument from Casey
was readily available. He made no such effort; indeed, he sounds wholly comfortable with the majority's reading of Roe
, which unequivocally reflected the orthodox liberal view of that case's import and rationale.
This does not suggest that Alito likes Roe
anymore than it suggests he would overturn it at the first opportunity. What it demonstates, however, is that the intellectual dishonesty of which he has been serially accused is indeed far more representative, at least in connection with the above example and those that preceded it, of his reflexive critics.
Every writing by Alito I have consulted since his nomination was announced has reflected an uncommony even judicial temperament, a fundamental humility, and an abiding respect for the law as he reads it, which is always readily defensible in terms of the precedents to which he has been bound as a circuit judge. Furthermore, I have yet to have seen him do any sort of editorializing; he appears to determinedly avoid offering dicta, inoperative conjectural language, in his opinions, a sign of tremendous restraint rarely demonstrated by his colleagues on the left or right.
I advert in closing to where I began: he's not my first choice. He's not even on my long list. He's a conservative jurist who is sure to decide cases, should he be confirmed, that will displease me. But that's true of any justice, and in itself is essentially an objection devoid of content. No judge will please any observer all the time, if he's making even a token wave at adhering to his oath to uphold the law.
After this survey, I can only caution anyone interested in informing him or herself about Alito's record to rely on the primary sources, his own opinions
. Trust no one. Not me, not anyone, but be especially cautious of minimal or fractured quotation and of people who don't bother to provide links to the governing materials. Judge Alito deserves to be evaluated in the terms of his own workproduct, not an interpretation of an interpretation of a jeremiad that was pre-composed as a general-purpose why-I-hate-Bush's-right-wing-nominee before the nominee was even announced.
I doubt I'm done with this topic, but this certainly is enough for now.
In the meantime, if you want more in this vein, Julian Sanchez clearly shares my concerns
More generally, there are links that seem not to fall into the above-identified traps, and I'd be remiss not to point them out:
Nick Gillespie has interesting thoughts
on the effect of Alito's long-term government service to his inclination to rule in the government's favor.
And Orin Kerr rocks my socks
Bitch Ph.D. offers some comments in her defense against the claim of "intellectual dishonesty" in a more recent thread
. Insofar as I think the discussion informs her approach to what she wrote, and my responses further circumscribe and elaborate on the reasoning behind my critique, I urge you to take a look.