Alito and "Judicial Activism"

Jacob Sollum has an interesting article at Reason about the different concerns of the Republicans and Democrats when it comes to Judge Alito's track record. First, he points out how the phrase "judicial activism" has now been borrowed by the Democrats, who use it just as absurdly as the Republicans have been doing for decades:

Once you realize activist has become a bipartisan epithet for judges who reach conclusions different from one's own, the label makes sense, although it's not very informative. Since one man's judicial activism is another's sound interpretation, poopyhead would do just as well.

Properly speaking, a judicial activist is a judge who does not apply the Constitution so much as rewrite it to fit his own policy preferences. For conservatives, Roe v. Wade was the height of judicial activism, overriding state laws restricting abortion based on a constitutional pretext so thin it vanishes when held to the light.

For the Democrats, voting to overturn Roe, as they fear Alito is apt to do, would be judicial activism. They also consider any suggestion of limits on congressional power, such as Alito's 1996 dissent questioning the constitutional basis for a federal ban on machine guns, to be judicial activism.

The Democrats on the panel seem quite concerned that Alito is too deferential to Presidential power and too willing to let the President do constitutionally dubious things as long as he says it's really important to let him do it; in that regard, the Democrats are correct to be concerned. Alito does appear, based on admittedly only a couple of data points, to be willing to write the President an essentially blank check on matters of foreign policy and terrorism.

But at the same time, they don't seem to think that Alito is deferential enough to Congressional authority, and they point to his dissent in the Rybar case as proof of that. In that case, Alito denied that the commerce clause gave Congress the authority to ban the ownership of machine guns (as opposed to the transportation of them, presumably). The issue of commerce clause interpretation is an important one, made all the more important (and baffling) by a string of decisions from the Rehnquist court.

In Lopez and Morrison, the Rehnquist court, for the first time in nearly three quarters of a century, recognized some limits on Congressional authority to federalize every conceivable issue. The courts had abstracted the meaning of the commerce clause beyond all conceivable linguistic limits over the course of many decades. The Wickard decision had essentially divorced the clause from the interstate modifier (the Constitution only grants Congress the authority to regulate commerce "between states", not within a state), but these two decisions began what many of us hoped would be a process of returning that particular clause to its real meaning.

Alas, last term's Raich decision not only ended that process it made things far worse than even Wickard had done. In ruling that the interstate commerce clause gave Congress the authority to regulate the production and use of a product that is neither interstate nor commerce (the marijuana was grown for personal use only, and only within one state), the court essentially declared that the actual meaning of the text is irrelevant - it may be bent and stretched and abstracted to cover whatever they want it to cover.

Particularly disappointing in that case was Justice Scalia, who claims to be an originalist but, as I've pointed out many times, really isn't one at all. He joined with the majority in Raich and proved, once and for all, that his "originalism" is little more than a thin veneer over the top of a legal realist who is capable of reaching any conclusion he wants without regard to text or history. Justice Thomas, on the other hand, delivered perhaps his best dissent, noting:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers.

Precisely right. One can only hope that Alito, who will be confirmed despite opposition from Senate Democrats, follows in Thomas' footsteps here and not Scalia's. Unfortunately, we can't really know that. His ruling in Rybar came after the Lopez and Morrison decisions but before Raich, so he may have just been trying to apply what he saw as the binding precedents even if he disagrees with them. Only time will tell if that ruling reflected his real position or not, but his overall record of deference to the other branches of government does not bode well in my view.

Personally, I want a judiciary that is "activist" in the broad sense of the term. I want a court that is active in policing the boundaries of both executive and congressional authority, insuring that neither oversteps their constitutional limitations. I want the Scalia who boldly and bluntly rebuked the President in the Padilla case, telling him that he simply does not have the authority to revoke habeas corpus in specific cases as he sees fit, not the Scalia who constructed a weak and transparent rationalization of deferring to Congressional authority for which there is no basis in the Constitution. Which of these Alito comes closest to may well determine how seriously the Roberts court takes the limitations on the other branches of government. O'Connor, inconsistent as she was on many subjects, was consistent on the question of the meaning of the commerce clause.

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I don't think Alito's deference to the other branches of government is just something to for dems to fear, it is something for everyone to fear. What bothers me more though is his seeming dishonesty. He keeps up with a line of "I don't recall" for issues that if he truly didn't recall he is not fit for the bench. I used to smoke a lot of marijuana and yet I still can remember action campaigns and activist groups I have associated with over the years, why I associated with them and the key people I was involved with in those groups. I can also remember things I listed on my old job applications. I am not a big Roberts fan but while Roberts was not terribly forthcoming in answering every question he never fell back on "I don't recall."

The other thing that bothers me and this goes to the democrats asking questions too - is his extreme appreciation of Bork. He was asked after the senator listed a few choice beliefs of Robert Bork if he in admiring Bork so much agreed with his positions on these issues. After Alito replied "no, I don't agree with Bork on everything" the matter was dropped. What I would have liked to see was a trun around that said all right, lets take them one at a time, do you agree with his position on executive powers? Do you agree with his position on federal authority over the states etc.

This hearing is a prime example of the aboslute failure of a two party system. Alito is arguably the worst candidate to be nominated since Bork, the GOP is in a shambles, the American people are looking for people to lead them out of the mess this country is in and the democrats are afraid to spend any political capitol to save us. It's like the democratic party wants to crash right along with the republicans.

Thomas is far more principled than Scalia and it happens that, from a result-driven viewpoint, he was on the "good" side in the medical marijuana case. But in the vast majority of cases, following his principles leads to disastrous outcomes. An expansive view of the Commerce Clause has been necessary for the viability of this country. If that view compels an honest judge to defer to Congress on the particular issue of medical marijuna, it is much better than the Thomasian alternative of rendering the "United" part of the country's name meaningless.

By enfant terrible (not verified) on 12 Jan 2006 #permalink

Treban wrote:

I don't think Alito's deference to the other branches of government is just something to for dems to fear, it is something for everyone to fear.

I agree with you, but at this point that's sort of the line being drawn in the hearings. The Republicans control the white house so they're not going to argue that the power of the president should be restrained. If a Democrat were in the white house, both sides would exchange scripts on that issue.

What bothers me more though is his seeming dishonesty. He keeps up with a line of "I don't recall" for issues that if he truly didn't recall he is not fit for the bench.

I agree that he's not telling the truth. I don't buy the "I don't recall" bit for a moment.

The other thing that bothers me and this goes to the democrats asking questions too - is his extreme appreciation of Bork. He was asked after the senator listed a few choice beliefs of Robert Bork if he in admiring Bork so much agreed with his positions on these issues. After Alito replied "no, I don't agree with Bork on everything" the matter was dropped.

I am always astonished by the admiration, almost universally spoken of at least, for Robert Bork on both sides of the aisle. Bork was an enormous danger to this nation as a Supreme Court justice and the Senate was absolutely right in turning him down. But I'll give Bork this much - he didn't run from his real opinions during the confirmation process (and thank goodness for that). Everyone knows that Alito is strongly disposed to be against Roe v Wade. The Democrats know it, the Republicans know it, the viewers know it. But we get this pointless song and dance of the right sounding catchphrases about recognizing the importance of stare decisis (which I frankly think is nonsense on both sides) and everyone feels better. Frankly, I would have far more respect for him if he would just say what he thinks. And the same is true of Roberts before him. Instead we get this little dog and pony show that everyone knows is a sham

enfant terrible wrote:

Thomas is far more principled than Scalia and it happens that, from a result-driven viewpoint, he was on the "good" side in the medical marijuana case. But in the vast majority of cases, following his principles leads to disastrous outcomes.

I think that argument requires, for me at least, a lot of argumentation to support it. I can think of some cases where it clearly led Thomas to the correct decision (Kelo and Raich being the most recent ones), and I can think of arguments where following it leads to bad outcomes primarily because I think he's misinterpreting the genuinely originalist position (particularly in cases involving individual rights). But I'm curious to hear some examples of where you think following his reasoning leads to disasterous results.

An expansive view of the Commerce Clause has been necessary for the viability of this country. If that view compels an honest judge to defer to Congress on the particular issue of medical marijuna, it is much better than the Thomasian alternative of rendering the "United" part of the country's name meaningless.

Again, I'd need to hear some serious arguments in favor of this position. Why has an expansive view of the commerce clause - let's be honest, we're really talking about just plain ignoring it entirely and letting Congress do whatever it wants, whenever it wants - been necessary for the viability of this country?

Ed, I'll have to owe you the arguments for a while, because the only way I know to demonstrate my position is to discuss a series of decisions in some depth, and, as much as I'd like to do that, I have a job and family, and this is neither...

I know this is not a satisfactory answer, but my comments are not meant to be complete theses with proofs, but simply as ideas put on the table. When I have time for more, I'll start (well, revive) my own blog.

Anyway, while Raich falls in a gray area, Kelo was decided the only right way, so Thomas was most definitely NOT correct in his dissent in that case. The dissenters in Kelo were, in effect, advocating absurdly anarchist and unworkable positions, as well as blatantly changed the meaning of the words of the 5th Amendment. (Here, fortunately, I don't have to outline my argument: just read the majority decision. The taking that happened in Kelo is something you'd want the legislature to prevent, but there is currently no law based on which a court is authorized to stop it.)

As for "letting Congress do whatever it wants", it is necessary because tyranny in this country has almost always come from state and local governments. (Hey, you just mentioned Kelo, which is quite likely a case of local government getting out of control - that's an example where the Congress could act, and if you construe the Commerce Clause narrowly, you'll get absurd results, where takings could benefit some businesses, but not others.)

But, "whatever it wants" is a mischaracterization. Congress has no authority to step on individual liberties guaranteed by the Bill of Rights and other Amendments, as well as by international charters and treaties ratified by the US. That's a lot of restrictions on what it can do. (That's the easy part of the answer. There is a second part - that meaningful federalism is alive and well despite an expansive view of the CC - but that does take a much longer argument, so I'll punt. This comment is already way too long...)

By enfant terrible (not verified) on 13 Jan 2006 #permalink

enfant terrible wrote:

Ed, I'll have to owe you the arguments for a while, because the only way I know to demonstrate my position is to discuss a series of decisions in some depth, and, as much as I'd like to do that, I have a job and family, and this is neither...

Fair enough.

Anyway, while Raich falls in a gray area, Kelo was decided the only right way, so Thomas was most definitely NOT correct in his dissent in that case. The dissenters in Kelo were, in effect, advocating absurdly anarchist and unworkable positions, as well as blatantly changed the meaning of the words of the 5th Amendment. (Here, fortunately, I don't have to outline my argument: just read the majority decision. The taking that happened in Kelo is something you'd want the legislature to prevent, but there is currently no law based on which a court is authorized to stop it.)

I totally disagree. The ones changing the meaning of the 5th amendment were those in the majority and I believe the dissent was dead on the money. The notion that the dissenters were advocating an "anarchist" position is...well, come on, you can't really mean that. There is nothing the least bit "anarchist" about saying that government may not take property from one person and give it to another because the other person will pay the government more for it - and that is precisely what was going on.

As for "letting Congress do whatever it wants", it is necessary because tyranny in this country has almost always come from state and local governments.

It is entirely appropriate for Congress to act to prevent state and local governments from enacting tyrannical laws; the 14th amendment clearly authorizes such action, so it's not based upon authority given in the commerce clause but upon authority given in the 14th amendment. But that doesn't mean that Congress itself can act outside the boundaries of the Constitution. There is a difference, obviously, between congressional acts which are aimed at reigning in state and local governments and acts which are aimed at reigning in individual behavior. But in both cases, it is the Constitution which determines their legitimacy.

Just to start - I am not a lawyer, I know not legalese.

The Kelo decision makes private property, for all intents and purposes, non-existent. Sure you can buy property but if someone comes up with a plan that would generate more revenue for the municipality they can convince the municipality to take that property. In effect the state (or municipality) owns your property and allow you to lease it from the state. Last time I read on communism, state owned property fit the definition. In effect Kelo puts the burden on a property owner to be aware of and inovative in ways of generating municipal funds with their property or risk losing it when someone else has a better idea as to how they might generate funds with it.

I understand and can even agree in some situations with eminent domain for the construction of needed infrastructure. It is not acceptable when property is taken to build a strip mall or some big hotel. That runs smack against the whole concept of private property.

As for "letting Congress do whatever it wants", it is necessary because tyranny in this country has almost always come from state and local governments.

When state and municipal governments restrict rights given us by the constitution, then and only then should the federal governement have the freedom to intervene. When it comes to medical marijuana that has nothing to do in interstate realms or even the right to die with dignity, the federal government becomes the tyranny when they decide to restrict such decisions. It makes this country no less united when such laws are in place. That is like saying that because I can turn right at a red light in my home state every state should allow it - or none should. By following your logic we might as well dissolve the state boundries in this country oust municipal government and blanket the country in uniform laws, it certainly would be simpler. Then the federal government could appoint governors for various regions and decisions could be made in Washington DC where they always work so efficiently. I don't figure you believe that would be the best way to go but from my under educated way of thinking that is the result of progressional logic starting with the aformentioned statment.

I live in Oregon and the people of OR have voted twice now to legalise the prescription of sodium morphate for the purpose of ending one life with dignity. It was a decision with overwhelming support from the people of this state that effects no one outside the state. The bush regime has decided to challenge this law in federal court. That, to me, smacks of tyrrany. A law that in no way effects anyone outside OR - I work in WA a lot right next to OR and no one there has been effected, I ask sometimes. Yet the federal government would choose to attack this law as somehow degrading the Union as a whole. When the federal government interferes with decisions that states make that are not restricting freedoms laid out for all Americans in the constitution or a danger to national security - that is tyranny and it is only possible at the federal level.