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.

Thursday, November 03, 2005

Lies and Lying Liars -- A Lefty Cries Bullshit on Pretty Much Everything the Left is Saying About Alito

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.

In Groh, 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 reach

5. 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.

UPDATE: 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.


Blogger perpetual slacker said...

Interesting and insightful. Thanks for taking the time to dredge through all that reading.

That quote from Alexander v. Whitman strikes a chord for me:

"I think that the court's suggestion that there could be "human beings" who are not "constitutional persons" is unfortunate... the reference to cosntitutional non-persons, taken out of context, is capable of misuse."

This sounds a lot like something I've been researching for a paper topic the last couple of weeks; the entry fiction doctrine in immigration law, and how it has been applied to inadmissible aliens, post 9/11. Foreign citizens not admitted at the border are indeed 'human beings' who are indeed not 'constitutional persons.'

Maybe I need to go re-visit those 'penumbras' I've been hearing so much about.1

1. Thank you Justice Douglas!

1:58 AM  
Anonymous binky said...

Well done. Particularly enlightening on the legal persons business.

I will take issue with the idea that most people are accusing Alito of intellectual dishonesty. Perhaps I am projecting, but it seems to be levelled more at the administration and its a) hope or b) manipulation of the hope of the base that Alito will be the firebreather they want. As I admitted at "home" I am not trained in the law, and focus on the politics surrounding the nomination. After reading your carefully research post, I now understand the legal side more clearly, but to fall back on an old IR way of looking at things, the signalling going on administration has been frantic.

As to the intellectualy dishonesty of Alito's critics, I think you level a harsh charge. Combine the framing of Alito as the darling of the rabid right (including by the administration and its supporters) with the vague, difficult and obtuse - not to mention, not always accessible to those without the approriate passwords - case history and you have a recipe for conclusion leaping. This is not the same thing as intellectual dishonesty.

Finally, I still do not think it unreasonable to consider the political applications that could arise from the kinds of decisions Alito would contribute to, should be make it to the court. You have spoken well towards the question of qualification, but as every job applicant knows, there is also the issue of "fit." Somewhere - who knows where since I have read 150,000 posts on Alito in the last few days - I read a comment (post?) that essentially put it this way: is Alito making wrong/illogical decisions or is he simply working from a framework with which I disagree and don't want to see reinforced in the US political system? The key point being, even if he is briliant, consistent, honest noble and true, does he take the court somewhere we want it to go. That, of course, is more of a political question.

7:21 AM  
Blogger Moon said...

Good Lord, am I here again already? So sick of these cases. :-)

Okay, Binky, thanks for the kind words and your thoughtful counterpoint, with which I substantially agree.

I agree with you that there's a distinction to be made between intellectual dishonesty and a more policy-oriented critique of the consequences of Alito's incipient ascent to the Supreme Court. I intended to embrace this distinction in indicating that he's not my choice. No one Bush has nominated to anything is my choice, but I haven't believed that serious senatorial obstruction is warranted in all cases. That said, I'm no tactician and I have not intended to venture a strong position on whether Alito should be filibustered. But when the only reasoning people provide in support of pitched senatorial battle is demonstrable incorrect, I'm not going to play along.

Alito is, in many areas, working from a framework I don't terribly like and don't care to reinforce. Unfortunately, the only alternative given current political realities is someone with no apparent framework, such as Miers, or someone with an even more odious framework (say Rogers Brown, Owen, or McConnell), and from this attorney's point of view that's far scarier both doctrinally and in practice.

Now, concerning your plea for generosity:

As to the intellectualy dishonesty of Alito's critics, I think you level a harsh charge. Combine the framing of Alito as the darling of the rabid right (including by the administration and its supporters) with the vague, difficult and obtuse - not to mention, not always accessible to those without the approriate passwords - case history and you have a recipe for conclusion leaping. This is not the same thing as intellectual dishonesty.

First, and trivially, I have yet to read a single "obtuse" opinion penned by Alito; they all have been exempla of concision, restraint, humility and clarity, whether one loves their premises or hate them. At least two of the majorities to which he was responding, opinions that by implication the left should love, on the other hand, were obtuse (Judge Chertoff's iffy Fourth Amendment analysis of Groh in the Doe case; and the majority in Rybar also had to twist things far more to reach its result than Alito did in simply applying Lopez's clear holding).

That said, you are right (and I have explicitly said) that some of these things require more work and expertise than possessed even by the leading lights of the blogosphere. But that doesn't excuse the sort of sloppiness any bright person should recognize in his or her own work, even in the staccato, un-proof-read world of the blogosphere.

I won't try to substantiate it as to everyone because I think a close reading of my post reveals several culprits. My best example, however, should suffice to exemplify the particular bowdlerizations that most disturbed me. An academic like Dr. B should know damned well when she is misquoting or blatantly misrepresenting someone's words, especially when the opinion in question is all of 100 words long (no safe harbor in claims of abstruseness here). As I said, in Alexander Judge Alito clearly said nothing regarding fetuses and personhood except, implicitly in his broad and unqualified endorsement of the majority, that the former are not the latter under the Fourteenth Amendment, a proposition with which the left has no truck. Rather, he objected to a patently technical aspect of the majority's written opinion not because he thought it wrong, but because he found "unfortunate" its potential for misuse "out of context."

I am not inclined to be forgiving here: the difference between what Dr. B ascribed to Alito (her qualification of his joinder of the majority as "reluctant" is particularly "unfortunate"; he leads with "I am in almost complete agreement with the court's opinion," perhaps his most affirmative statement in any opinion I read, and hardly indicative of "reluctance") and what Alito actually said is as stark as red and blue.

Faced with something like this, I have two options. I can either decide that Dr. B isn't nearly as bright as I thought she was, and that I've been wasting my time reading her as a fairly authoritative voice in the wilderness, or I can conclude what I know in my heart to be true: that so fervent was she to find fault, and more particularly to find some nascent anti-Roe agenda in Alito's writing, that she simply confabulated one when it wasn't forthcoming.

I intended to note that her discussion of Alito's opinion in Casey is far more persuasive and accurate in terms than any of her other discussions. It was not by accident that I opted not to defend this opinion against its critics, because I think the critics are sharper on that opinion than others, perhaps because as a straight-up Roe opinion, and one that was subsequently analyzed at great length by the Supreme Court, it's one that the informed non-lawyer left well knows and understands.

I think anyone who's done serious academic or intellectual writing, anyone who's done serious work in the law (we're the worst, because in some sense it's our job), knows damned well when one is manipulating words to make one thing seem like something slightly different. I credit Dr. B's intelligence too much to ascribe to her anything but knowledge of the game she played there, and I still cry bullshit.

For similar reasons, Lemieux's misreading of Doe and the LawProf's misreadings of the FMLA case highlighted by Ann Althouse are so patently inaccurate that I refuse to chalk them up solely to mistake -- those, too, are cases where the agenda forms rather than informs the message.

We can't bemoan the depths to which the confirmation process has sunk if we're going to be part of the problem. And I have no interest in being part of the problem. I'm finding very few people in the blogosphere and the leftward media whom I can trust, and that's a damned shame, because I know well my own limitations and I rely on people smarter than me to help me keep up.

10:10 AM  
Blogger Scott said...

This is a superb post. Superb. If only more bloggers took the time to do this our debates would be much better informed.

That said - Binky has got a good point.

Nonetheless, thanks for taking the time to do this, and trying to get us to consider this nomination with the seriousness and care that it warrants.

10:10 AM  
Anonymous Anonymous said...

((Lindsay from Majikthise here, forgot my Blogger ID))

Any errors in the Groody post are my responsibility, I didn't read Scott's post until after I posted my own.

I omitted the question of reasonable belief on the part of the police officers because, to me, the interesting question was not whether Doe was allowed to sue the police for violating his family's rights, but rather, whether their rights were violated. The Court approached the question in two steps, first rights violation, then qualified immunity. Also, Alito himself wrote that his central disagreement with his colleagues was whether the affidavit broadened the warrant. He maintained that it did.

Alito argued that there had been no rights violation, he also added that the officers would still be covered by qualified immunity because they might reasonably have believed that they had authority to do whatever the attached affidavit said as long as the judge signed the warrant.

Alito's claim's about the police officers' reasonable belief were the weakest part of his opinion. After all, police officers are trained to fill out warrant request forms. They are trained to reference the affidavit in the warrant request form. We know these officers knew that much because they did specifically reference some passages of the affidavit, but not others.

The cops' claim that they didn't bother to list all the persons to be searched because they ran out of room on the form is preposterous. That suggests that they knew that there really ought to have been more names on the form and they were too lazy, or too chicken to add them on the form they presented to the judge.

10:51 AM  
Blogger Moon said...

Hi Lindsay -- welcome, and thanks for the response. I appreciate the clarity with which you state your reading of Doe. The crucial distinction between Alito and the majority, to my thinking, is that he found the affidavit to be part and parcel of the warrant due to its incorporation by reference in the probable cause section of the same form (the probable cause section of the affidavit being precisely where the need to search all occupants present was explained and defended in more detail than is often provided in such affidavits), its attachment to the warrant form, and the magistrate's signature of both the warrant form and the affidavit.

Alito rejects a hypertechnical reading of extant Fourth Amendment caselaw in favor of a commonsense consideration of what the police requested and what the judge signed off on. He doesn't contend that one should go outside the four corners of the warrant, which would indeed be a frightening proposition; he just considers the affidavit to be part of the warrant under the circumstances of the case, and most crucially, given the posture and the claim, found that reasonable police officers faced with such a document, such an incorporation by reference, and both judicial imprimaturs, could reasonably have concluded that the warrant permitted the search of all occupants. Thus, their misconduct was not so patently knowing or egregious that it militated against the qualified immunity law enforcement broadly enjoys.

Reasonable minds may differ, but I saw no disrespect for fundamental Fourth Amendment protections in that opinion. That's enough for me to find general alarm uncalled-for.

11:09 AM  
Anonymous Anonymous said...

((Lindsay again))

The warrant form referenced the affidavit with regard to probable cause. But what did the affidavit actually say? The affidavit said there was probable cause to search John Doe and his home because an informant had purchased meth from him within the last 48 hours and because the police had observed known drug users and drug gang members coming and going from his house. The affidavit is clearly referring to these visitors and customers when it asks for permission to search all occupants. The affidavit says that all occupants must be searched because John Doe has frequent visitors over to purchase methamphetamine, and because in the officer's experience, dealers often hand off drugs to "these persons" (i.e. the visiting clients "who do not acutally reside or own/rent the premises"). As the Majority notes, the police don't say that in their experience drug dealers often stash drugs on their minor children. The Majority also notes that, unlike the sketchy visitors, there was no evidence whatsoever that Jane or Mary Doe was connected with the drug trade in any way.

So, the fact that the warrant references the affidavit with regard to the probable cause for searching John Doe and his home doesn't establish probable cause to search his wife and child.

Alito absurdly claims to be making a common sense reading of the warrant. Common sense dictates that the box "persons or things to be seized" should particularly identify those persons. The officers had the option of writing "John Doe and all occupants." But for some reason they didn't. As long as we're willing to wade through intentions and meta-intentions, as Alito does in his dissent, it seems fair to wonder whether the cops were trying to cover their asses by asking for a narrow warrant with a broad affidavit.

Alito's opinion is alarming because it evinces indifference towards two key principles: 1) That independent judges, not police, issue warrants; 2) That warrants must particularly describe the place to be searched and the persons or things to be seized. It's one thing to extend to principle of charity to a search warrant, it's quite another to attempt elaborate logical gymnastics to establish that the Magistrate must have meant to authorize whatever the cops must have meant when they filled out the form.

12:14 PM  
Anonymous Anonymous said...


Excellent Commentary. Thanks.

I am a gun-toting member of the so-called "rabid right." I am also an attorney and was thus able to read some of Judge Alito's opinions for myself.

Having done so, even I was shocked by the downright dishonesty of the attacks coming from, for example, the Brady campaign (pushers of the "Machine Gun Sammy" smear). As you explain, Alito's Rybar dissent not only did not foreclose the possibility of machine gun regulation, but was facially more respectful of the Supreme Court precedents (i.e., Lopez) than the majority opinion.

Your post makes it clear that the Brady smear is unfortunately typical of the cricism coming from the left...disgraceful.

Fortunately, through the internet the mendacity of the left wing attacks is being quicky exposed, and Alito will be confirmed.


2:05 PM  
Blogger Moon said...

Pssst, Ano, just remember that the right wing isn't interpreting his cases any more faithfully or accurately, and that you might be as wrong to hope he's going to be a rabid idealogue as the left is to fear it.

Don't kid yourself that pundits on one side have their heads any less deeply in their asses on this one than pundits on the other side. I'm pretty sure we're all being sold a bill of goods to ensure a healthy fundraising campaign for all interested PACS.

2:11 PM  
Blogger Pooh said...


Outstanding. Thank you.

I too have been frustrated by leftish commentators who should know better getting things blatantly wrong about Alito's judicial record. I'm no big fan of strict originalism/constructionism/textualism (or whatever -ism W claims to support...) either. But the, at times, petty attempt to portray the nominee as some sort of harbinger of doom for the world as we know it is as intellectually bankrupt as those liberals who supported confirmation of Miers because she would be incompetent and thus less of a force.

From the monstrously unfair 'Scalito' sobriquet to the distortions you outline above, what we are really seeing is a mass spleen-venting from those (justifiably) frustrated with the horrific job performance of the Exceutive in Chief. Much like with Roberts, it is not (in my opinion) warranted here.

As you say, he might not decide cases in directions I would wish to see, in terms of both outcome and process. But that's what I get for my 'guy' losing the election. Alito is certainly more qualified then Miers, and his record as a whole doesn't indicate any Borkish disconnect from the mainstream. Given that, I think it is both wrong as a matter of our Constitutional structure and as a matter of simple prudence (the Dems will have judges to nominate too. Someday. We hope.) to vote against just because you don't like the conclusions he reaches.

10:01 PM  
Anonymous Matt said...

Excellent post.

BTW, Dahlia's not too hideous.

5:46 PM  
Anonymous Matt said...

Oops, forgot this in the above comment.

5:48 PM  
Blogger gm said...

Excellent post. I tip my hat to you, sir.

8:07 PM  
Blogger iocaste said...

Sorry if someone already mentioned this, but , I disagree with your reading of Groody.

Certainly, the question of qualified immunity is not the same as the question of suppression. But in deciding qualified immunity, a court is required to first decide whether there was a rights violation at all, and only then may it turn to the question whether the law was clearly established so as to permit a lawsuit.

The first question is the same as it would be for a suppression of evidence case.

In Groody, Alito found there had been no rights violation -- he wouldn't have suppressed the evidence. Only then did he turn to the question of whether this was clearly established law, concluding that even if his first analysis was in error, the officers still had qualified immunity.

Forgive me for being too lazy to look up the Supreme Court case that says so, but it is required in all Section 1983 jurisprudence for courts to decide the constitutional question first.

6:14 PM  
Blogger iocaste said...

Not too lazy after all. This is a quote from County of Sacramento v. Lewis, 523 U.S. 833:

As in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated. See Graham v. Connor, 490 U.S. 386, 394, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). The District Court granted summary judgment to Smith on the basis of qualified immunity, assuming without deciding that a substantive due process violation took place but holding that the law was not clearly established in 1990 so as to justify imposition of § 1983 liability. We do not analyze this case in a similar fashion because, as we have held, the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question.

6:19 PM  
Blogger Moon said...

Iocaste, I stand corrected on the standard of review for Section 1983 claims, but otherwise I remain unpersuaded regarding the offensiveness of Alito's ruling or what some say it augurs for Fourth Amendment jurisprudence under his stewardship.

I intended, whether or not I succeeded, to say little more than this: I think his application of Groh to assess the legitimacy of the warrant was more straightforward, and more readily complied with that decision's surface contours, than what I took to be the more strained reading of the majority opinion.

I don't like the outcome any more than anyone else from the center to the left does, but it's worth noting that Alito expressed his own displeasure with the outcome in concluding his dissent. The fact remains, that the totality inquiry that predominates in the Fourth Amendment context often leaves room for divergent opinions, neither of which is facially problematic. I take this to be one such case, and while I might prefer a judge to rule differently, that's irrelevant to my thesis: that when it comes to decisions where reasonable judges will differ, I refuse to cast a judge as a zealot for taking either position. I don't see Groody as suggesting all that much to worry about. This, on the other hand, concerns me.

3:33 PM  

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