Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Friday, November 04, 2005

Cooler Heads on Alito -- Maybe Not Prevailing, But Cooler Anyway

I've done my little part to disabuse the open-minded of some dubiously uncharitable interpretations of Judge Alito's opinions (and to the folks from PointOfLaw, welcome), and I don't know that I'll have cause to write at length again. For now, I'm just going to aggregate what I take to be sites that are fighting the good fight -- not for or against Alito, just for fair readings of his work and realistic acknowledgments of what limitations such readings impose on what one can conclude about the sort of judge Alito is.

Julian Sanchez continues his engaging dialog with ThinkProgress.

Randy Barnett flags Ann Althouse's post regarding Alito's putative conservatism, identifying it as more the judicial restraint variety than the ideological movement conservatism variety.

Barnett also offers thoughts on Alito as the "Triumph of Roosevelt over Madison," which is also, according to him, the triumph of Scalia's conservatism over Thomas' (which I'm not going to assess, except to note that it's always nice when someone recognizes that these two justices aren't nearly as monolithic in their sympathies and jurisprudence as the media (and the President) sometimes suggest). For Barnett, this is unfortunate: a Rooseveltian account of the Necessary and Proper Clause, Scalia's and perhaps Alito's, calls for substantially more restraint, sticking us with a state of law that Barnett disapproves.

Ted Frank and Dave Kopel reach the same conclusion that I did -- that in Rybar, Judge Alito was trying to follow in good faith the Supreme Court's ruling in Lopez when he argued that the Commerce Clause did not authorize congressional regulation of intrastate possession of machine guns absent a proper jurisdictional hook or congressional findings demonstrated a direct impact on interstate commerce.

Orin Kerr flags the Yale Law Journal's posting in .pdf form of Judge Alito's student note, Samuel A. Alito, Jr., Note, The Released Time Cases Revisited: A Study of Group Decisionmaking by the Supreme Court, 83 Yale L.J. 1202 (1974). Yep, law students, that article you submitted in a form that was little more than a stack of disconnected information about a general area of law that, magically, was accepted for publication, and which you then completely reconfigured and rewrote from scratch, all 25 pages and 200 footnotes of it, in 18 hours of coffee-fueled panic . . . well, in thirty years, when you're tapped to some prominent position, it's going to come back to haunt you. Wait, I thought you were the one who rewrote it from scratch in one night. That was me? Holy shit you're right! I totally forgot.

And on a lighter note, Alito's a bit rumpled.

If you want more from law-oriented sites, it's probably linked at SCOTUSBlog. If you want more media, it's probably linked at How Appealing.

Happy hunting.


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