Dispatches from the Creation Wars

Alito is the Man

Posted by Ed Brayton on October 31, 2005
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As I’m sure everyone knows by now, President Bush has nominated Samuel Alito to replace Harriet Miers and will send his name to the Senate for confirmation to take Sandra Day O’Connor’s seat on the Supreme Court. It’s an interesting pick to me, as I would have put him about 3rd or 4th on the list of others with similar credentials. The pick was determined by the criteria Bush chose to use. If he was going to try again for a woman, there was one short list; if he was going to try and name the first hispanic to the court, there was a different short list. And if he was going to just pick from the top names, I would have ranked that short list roughly like this: McConnell, Luttig, Alito, Wilkinson. All have fairly similar resumes (though McConnell has a much stronger record as a legal scholar than the others, which is why I rank him at the top) and all are solidly conservative.

Alito has written some very interesting religion law opinions, which I haven’t had the chance to go through in their entirety yet. The most prominent is probably FOP v. Newark, in which Alito wrote the unanimous opinion for the court, ruling that the Newark police department could not forbid Muslim officers from having beards even though the policy against beards was generally applicable and not aimed at any particular religion. That suit was brought by the ACLU and the Becket Fund. Very strong free exercise case.

Another was ACLU v Schundler, a holiday display case from Jersey City. Alito wrote the majority opinion (2-1) upholding the constitutionality of a holiday display on public property. The court had previously struck down that city’s display on establishment clause grounds, but the city had changed it significantly, adding in secular symbols and the like to bring it in line with the controlling precedents, Lynch v Donnelly and Allegheny v Pittsburgh. Interesting to note that the defendant in that case, Jersey City, is an unusually diverse city that has a long history of providing public commemoration of a wide range of holidays of religious significance. They hold an annual parade on a Hindu holy day and have a public commemoration of Ramadan, Hannukah and others as well. So that’s a case in which O’Connor’s endorsement test would likely not be invoked, putting Alito’s ruling in line with the justice he would be replacing.

Another interesting case is Blackhawk v Pennsylvania, which came down last fall. It’s a free exercise case where an American Indian was seeking relief from a state law against keeping bears in captivity because, in his religion, black bears had great spiritual significance and were used in religious rituals. Alito applied the obvious precedent, Church of Lukumi Babalu Aye, Inc. v. Hialeah, and ruled that Blackhawk must be granted an exemption from those laws.

So far, I’ve seen nothing that makes me react badly in his religion clause rulings. He appears to be very strong on free exercise cases, but he applies the same standards to all religions. And on the establishment clause cases, the rulings I’ve seen are all reasonable. Of course, that is as an appeals court judge where one must rule pursuant to Supreme Court precedent, but his use of such precedents is reasonable and often compelling. He writes well, from what I’ve seen.

I’m sure more will come out on Alito over the next couple weeks. I make the same caution I made with Roberts, which is that you should not believe anything an interest group on either side says about his rulings or writings without looking it up for yourself. Court rulings often involve very narrow technical grounds which are easy to distort and make it sound as though the judge just wantonly came out against good and for evil.

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  1. #1 raj
    October 31, 2005

    I have to start going to foreign language blogs. The problem is that the US is not the be-all or the end-all of countries in the world, and the Bushies have made sure of it. I don’t do French, but I do do German.

  2. #2 Matthew
    October 31, 2005

    I’m going to miss Miers’ brilliant observations on how the government should do things that are good and avoid doing things that are bad. We can only hope Alito will provide such insight.

  3. #3 Naked Ape
    October 31, 2005

    The good news is if you men out there don’t own a uterus, you soon will (at least until the divorce is final).

    As a penis owner and possible sperm donor, Scalito believes you should have veto rights over your little woman’s pregnancy decisions.

    That should help keep ‘em pregnant but more laws will be required to keep ‘em barefoot and in the kitchen.

  4. #4 spyder
    October 31, 2005

    Well here are some of those non-religious cases to look through and review for consideration:

    Planned Parenthood of Southeastern Pennsylvania v. Casey, 1991
    Bray v. Marriott Hotels, 1997
    Nathanson v. Medical College of Pennsylvania, 1991
    Chittister v. Department of Community and Economic Development, 2000
    Nevada v. Hibbs, 2003
    Doe v. Groody, 2004
    Dia v. Ashcroft, 2003
    Ki Se Lee v. Ashcroft, 2004

  5. #5 Ed Brayton
    October 31, 2005

    I wish this “Scalito” nickname would die. Other than both being Italian and conservative, one is hardly a clone of the other. By all accounts, Alito’s temperament is decidedly different than Scalia’s. He is not given to the kind of rhetorical bomb throwing that Scalia is and his opinions are written in a very dry, scholarly language. He is much closer to John Roberts in this regard than to Scalia.

  6. #6 Leni
    October 31, 2005

    spyder wrote:

    Planned Parenthood of Southeastern Pennsylvania v. Casey, 1991

    I’ve read something on Alito’s reasoning in this case, and I’m a little confused by it. From my understanding, Alito dissented and the majority opinion was that informing one’s husband of an abortion constituted and undue burden.

    From Wikipedia:

    As Judge Alito reasoned, “[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems — such as economic constraints, future plans, or the husbands’ previously expressed opposition — that may be obviated by discussion prior to the abortion.”while also adding some exceptions: “These exceptions apply if a woman certifies that she has not notified her husband because she believes [FN4] that (1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her.” Chief Justice Rehnquist’s dissent from the Supreme Court’s 5-4 [corrected] decision striking down the spousal notification provision of the law quoted Judge Alito’s dissent and expressed support for Judge Alito’s reasoning.

    Can anyone explain to me how the potential obviating of a woman’s worries in some cases doesn’t make it an undue burden in other unforseen cases less extreme then the ones he accounted for? Perhaps fearing verbal abuse, browbeating, or divorce is not worthy?

    Why only married women? And what interest does the state have in compelling individuals to impart specific personal medical information to anyone, much less their spouses?

  7. #7 dancomfort
    October 31, 2005

    I’m no legal expert, but I don’t respect those decisions as described. If a cop is told by Allah to grow a beard, he’s allowed to, but if I’ve got the exact same job and I make my own decision to grow a beard, no matter how well-informed that decision is, I’m not allowed to. Same logic for keeping bears, avoiding the draft, etc.

    Lame.

  8. #8 Matthew
    October 31, 2005

    Can non-muslim policemen grow beards in Newark now, or do they have to lie and say it’s a religious thing before they can do it? I agree with the decision but for different reasons; it’s just an arbitrary rule to begin with.

  9. #9 Ginger Yellow
    November 1, 2005

    Ed: I’ve got a somewhat off-topic question for you, but since Alito is frequently compared to Scalia, this seems like the best place for it.

    “Originalists” supposedly believe that the constitution should be interpreted as its writers intended (or perhaps how its contemporary audience would have understood it). The logical conclusion of such a line of reasoning is that Congress could, today, pass amendments repealing the existing amendments and replacing them with exactly the same wording, and yet in doing so would completely change the meaning of the constitution. Has any originalist explained how they reconcile this fact with judicial sanity?

  10. #10 Jim Lippard
    November 1, 2005

    Naked Ape: The case was about notification, not consent. You shouldn’t have to misrepresent his position to argue against it.

    Ginger Yellow: How is the scenario you describe any more puzzling or problematic than any instance where when a person two hundred years ago uttered a sentence, it meant one thing, and when a person utters it today, it means something else? Why should the court not interpret laws made in the past the same way a reader should accurately interpret a philosophical treatise written in the past? Should changes in the law be made as a result of conscious effort on the part of the legislature and the people, or as a result of changes in language over time?

    If Congress were to repeal existing amendments and replace them with exactly the same wording, the record of discussions of why they did it would have a bearing on the meaning, which would be relevant to any court decisions.

  11. #11 raj
    November 1, 2005

    I seriously don’t understand the decisions in some of these cases. It was made clear in the Utah Territory polygamy case (I could find the caption–something like Reynolds vs US) that there is a difference between the right to believe somthing and the right to practice on that belief.

    The issue with the chicken case in FL was that the ordinance was specifically intended to attack a practice of a particular establishment of religion. That is why the ordinance was declared unconstitutional.

    Contrast that with the peyote case out of Oregon, in which the US SupCt upheld the illegality of use of peyote irrespective of the desired practices of an establishment of religion because there was (i) no evidence that the law had been passed in respect of a particular establishment of religion and (ii) it was a law of general applicability.

  12. #12 Naked Ape
    November 1, 2005

    Jim,
    Forgive me if you thought that was a deliberate misrepresentation, but notification/consent appears to be a distinction without much of a difference in this case.

    What on earth would this notification be for, if not consent? It would seem that in cases where the male did not consent to an abortion, that the danger to the woman merely increases with this mandatory notification.

    Cheers,

    Naked Ape

  13. #13 Ginger Yellow
    November 1, 2005

    “Should changes in the law be made as a result of conscious effort on the part of the legislature and the people, or as a result of changes in language over time?”

    What if the intent of the legislators is that changes should come through language over time – as indicated by the use of highly subjective and time-limited concepts such as “cruel and unusual punishment”?

    “If Congress were to repeal existing amendments and replace them with exactly the same wording, the record of discussions of why they did it would have a bearing on the meaning, which would be relevant to any court decisions.”

    It’s my understanding that Scalia refuses to pay attention to the conference reports on legislation. Am I wrong?

    Here’s an example of why this is insane. It’s a reductio ad absurdam, sure, but originalism is absurd. What if the legislators who replaced the existing amendments with the same text were “living constitution” advocates and explicitly said in their discussions that their intent in replacing the constitution with the same text was to highlight the absurdity of originalism? In other words, what if the intent of the legislators is that judges should ignore their intent?

  14. #14 Jim Lippard
    November 1, 2005

    “What if the intent of the legislators is that changes should come through language over time – as indicated by the use of highly subjective and time-limited concepts such as “cruel and unusual punishment”?”

    It seems to me they could say so without contradiction, and an originalist could say that these specific changes are governed by current meaning rather than original meaning or intent–as per the stated intent behind the changes.

    “It’s my understanding that Scalia refuses to pay attention to the conference reports on legislation. Am I wrong?”

    I don’t know. I believe his form of originalism is a not-entirely-consistent form of original intent (as opposed to original meaning, advocated by Randy Barnett in his book _Restoring the Lost Constitution_).

    “Here’s an example of why this is insane. It’s a reductio ad absurdam, sure, but originalism is absurd. What if the legislators who replaced the existing amendments with the same text were “living constitution” advocates and explicitly said in their discussions that their intent in replacing the constitution with the same text was to highlight the absurdity of originalism? In other words, what if the intent of the legislators is that judges should ignore their intent?”

    While this might present a problem for originalism based on intent, it presents no difficulties for originalism of meaning. I’m sure scenarios can be created where legislators create laws the interpretation of which is highly ambiguous or contradictory–they do that already without trying.

  15. #15 Jim Lippard
    November 1, 2005

    “Forgive me if you thought that was a deliberate misrepresentation, but notification/consent appears to be a distinction without much of a difference in this case.

    What on earth would this notification be for, if not consent? It would seem that in cases where the male did not consent to an abortion, that the danger to the woman merely increases with this mandatory notification.”

    Mandatory consent would mean the abortion could not proceed until the husband had agreed to it and signed his name. Mandatory notification would mean the abortion could proceed, 24 hours after notification of the husband (with exemptions for victims of spousal assault or women who believe they will be assaulted upon notification, where the husband is not the biological father, and for medical emergencies). With these exemption conditions, it’s not a distinction without a difference.

    The purpose is clearly that some people (a majority of them in the U.S., in fact–including a majority of people who call themselves Democrats or liberals, on multiple polls) think the husband has a right and interest in knowing if his wife has an abortion, and that this should be enforced by the state (see http://www.volokh.com/archives/archive_2005_10_30-2005_11_05.shtml#1130794255 for poll results). You and I disagree with that position, but there’s clearly a coherent position there and it’s distinct from mandatory consent. And not, to my mind, clearly unconstitutional. (Nor to the minds of the Supreme Court justices who decided Casey, since it was a close decision, 5-4, that almost went the other way.)

  16. #16 Leni
    November 1, 2005

    Jim Lippard wrote:

    . Mandatory notification would mean the abortion could proceed, 24 hours after notification

    But how is notification verified? Is it notorized? Requiring people to reveal private medical information? Are there witnesses? Does the husband merely sign a form?

    I know that you are playing devil’s advocate, but this argument still sounds like shit to me.

    And given that spousal notification requires the spouses consent to be notified, I would say that it this does in fact constitute consent. How long can a husband ignore notification before the abortion becomes a late term, “partial birth”?

    Are spouses, for instance, required to notify each other, via notorized forms or other means, that they have cancer? Or heart disease? That they have a consiberable amount of genetic baggage which might result in seriously ill offspring?

    And again, why only married couples? What about the rights of unmarried men? Why doesn’t the state have an interest there? And why is physical abuse that’s been previously reported the only kind we should consider?

    I think I have a “right” to know whether or not my spouse has been screwing the neighbor lady. That doesn’t mean I think the state has an interest in it, nor does it mean I think I should have have to grant consent if my husband gets some bitch pregnant.

    Which would be funny, in an ironic way, since he could get anyone pregnant without my informed consent but I couldn’t do the same.

  17. #17 Ginger Yellow
    November 2, 2005

    “While this might present a problem for originalism based on intent, it presents no difficulties for originalism of meaning. I’m sure scenarios can be created where legislators create laws the interpretation of which is highly ambiguous or contradictory–they do that already without trying.”

    Well indeed. And that’s why judges should try to interpret the law according to the language of the legislation as it would be interpreted today, taking into account official legislative supplements like conference reports. Because that’s what they’re qualified to do. They’re not historians, so they’re not qualified to know how a text would have been interpreted 200 years ago. Hell, most historians aren’t. A good constitution should be able to survive the lifetime of a nation, at least in part, which I assume you would hope to be at least a thousand years in the case of America. Do you really expect that judges in 2800 will be able to tell accurately how the interpretation of ambiguous phrases differed in 1800 and in 2000?

    The whole point of having a “living constitution” is to allow for the natural change of mores and customs over time while maintaining continuity with the past – to bend like a reed in other words. Originalism turns the constitution into an iron bar that is inflexible until it breaks.

  18. #18 Ed Brayton
    November 2, 2005

    Ginger Yellow wrote:

    The whole point of having a “living constitution” is to allow for the natural change of mores and customs over time while maintaining continuity with the past – to bend like a reed in other words. Originalism turns the constitution into an iron bar that is inflexible until it breaks.

    I disagree with this. You have to recognize that there are several different types of originalism. The originalism of Scalia differs even from the originalism of Clarence Thomas, and they are close allies and both considered conservative originalists. Even among conservative originalists you have three different types – original intent, original meaning and original understanding. But most importantly, there is also liberal originalism (liberal in the classical sense, not the modern political sense) advocated by Randy Barnett, Scott Douglas Gerber, Timothy Sandefur and myself, among others. Liberal originalism is not open to the charge of being inflexible because it does not lock the constitution in to the immediate intent or understanding of the founders but rather looks to the broad principles of the Declaration of Independence and applies those principles, rather than the founders’ incomplete or compromised application of them, to current situations as they arise. It is the ideal combination of flexibility tied to principle.

  19. #19 Ginger Yellow
    November 2, 2005

    Fair enough – my ire/incredulity is aimed at what you call conservative originalism. I’m not really sure that my take differs much from yours, since my terminology is fairly loose.