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The Roberts/Alito Court
The American Prospect ^ | 10.31.05 | Mark Tushnet

Posted on 10/31/2005 3:32:05 PM PST by neverdem

How Samuel Alito would push the Court even further right than William Rehnquist.

We already know some of the dynamics of President Bush’s nomination of Judge Samuel Alito: the president’s low approval ratings, driven lower by defections from his base during the Harriet Miers episode, and his need to recapture some political ground by shifting attention from corruption and incompetence to a Supreme Court nominee who can’t be challenged as an incompetent crony.

One element in the political dynamics, though, may have been overlooked. The president is taking advantage of what might be merely a moment of unified government to consolidate conservative control of the Supreme Court. Facing the possibility (though hardly a certainty) of a Democratic majority in the Senate after next year’s elections, and even of a Democratic president after 2008, Bush is following the tradition established by John Adams in 1800: If you think you might lose control of the political branches, try to plant your allies on the Supreme Court so they can as check the excesses (as you see them) of your political opponents.

Alito’s nomination seems likely to put this element at the center of the confirmation discussion. Nobody’s going to claim that he lacks the basic qualifications of a Supreme Court justice, and the Miers episode made the focus on a nominee’s judicial philosophy inevitable -- though I’m sure we’ll see some conservatives turning on a dime to assert that the debate should be exclusively about competence and qualifications, not judicial philosophy.

Alito is a down-the-line judicial conservative. It’s not for nothing that he’s acquired the sobriquet “Scalito.” Here, too, we’re already seeing some scrambling by conservatives to deny that Samuel Alito is an Antonin Scalia clone, mostly taking the form of disparaging the latter as acerbic and personally abrasive in contrast to the former’s smoothness -- overlooking the fact that, on a personal level, Scalia is entirely affable. (Indeed, although it’s been forgotten, when Scalia was nominated his supporters and opponents agreed that his ability to get along with everyone might make him a unifying force on a divided Court. Sound familiar?)

But, looking at Judge Alito’s record, it’s hard to find anything a conservative would disagree with. He interprets the free-exercise clause expansively because it protects the rights of religious dissidents, which is the self-characterization of many religious conservatives in what they see as a secular society. He interprets the establishment clause restrictively because it keeps religious conservatives from enacting their preferred agenda when they happen to control a school board or city council. And he obviously disagrees with Roe v. Wade, having voted to uphold the one provision of the Pennsylvania abortion statute that the Supreme Court struck down in the Planned Parenthood v. Casey decision of 1992.

Worth emphasizing are two cases in which Judge Alito was more conservative than the Supreme Court’s conservatives. In one, he found that the Constitution precluded Congress from requiring state and local governments to provide family medical leave. The Supreme Court, in a decision written by Chief Justice William Rehnquist, upheld the federal statute. Alito’s defenders are going to say that the case he decided presented a slightly different question from the one presented in Rehnquist’s case. That’s true. But cases are almost always distinguishable, and the tenor of the chief justice’s opinion is quite different from Alito’s holding.

Even more striking, Alito, almost alone among all federal judges, would have held that Congress couldn’t use its power to regulate interstate commerce in a way that would make it a crime for a person to possess a machine gun. He took the Supreme Court’s decisions restricting that power and ran with them past where anyone else had -- or would. Last year’s case involving medical marijuana makes it clear that the Supreme Court doesn’t have nearly as restrictive a view of Congress’ powers -- and, conversely, as expansive a view of the Supreme Court’s powers -- as Judge Alito does. And, in the medical marijuana decision, who wrote an opinion explaining why Congress could prohibit the private possession and use of marijuana? Justice Antonin Scalia.

More conservative than Rehnquist and Scalia, then. A Roberts Court with Samuel Alito would be under consolidated conservative control. What then? If we continue to have unified government under Republican control, not much. The Supreme Court would do some of the jobs that, mostly for reasons of time, Congress can’t get around to. It might invalidate some statutes adopted by state legislatures controlled by Democrats instead of using Congress’ power to preempt those statutes. It might eventually overturn Roe v. Wade, although the political implications of doing so are likely to hurt Republicans (and so a conservative Court might not take that step). Basically, the Roberts Court would collaborate with the Republican political branches to advance the Republicans’ substantive agenda, just as the Warren Court collaborated with the Democratic political branches.

A return to unified Democratic government is so unlikely as not to be worth spending time on. If we get divided government again, the Roberts Court could be free to pursue a strongly conservative substantive agenda, confident that its allies in Congress would have enough power to ensure that the Court’s decisions would stick -- and confident that its opponents would fulminate but not be in a position to mount a full-scale attack on the Court. Or, and I think this is more likely, the Roberts Court would, like the Rehnquist Court, drift gradually to the right, changing constitutional law incrementally while awaiting the return of unified Republican government.

Over the past few weeks I’ve quoted a line from the conclusion of the film Dead Again. The three main characters are together in a small room, each (as I recall the scene) pointing a gun at another. One of the characters says, “I, for one, am very interested in what happens next.” Me, too.

Mark Tushnet is the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law.


TOPICS: Business/Economy; Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events; Politics/Elections; US: District of Columbia
KEYWORDS: abortion; alito; assnetwork; banglist; conservatism; robertscourt
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As if Anthony Kennedy is a reliable conservative.
1 posted on 10/31/2005 3:32:06 PM PST by neverdem
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To: neverdem
Happy Scalitoween!!!

De Wine and Grahams have BOTH made public affirmations today of their intent to vote for the Constitutional Option IF the Dems try to fillibuster! That's 2 of the squishy 7!!!!!

2 posted on 10/31/2005 3:35:49 PM PST by MNJohnnie (Merry Alitomas!)
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To: neverdem

"Even more striking, Alito, almost alone among all federal judges, would have held that Congress couldn’t use its power to regulate interstate commerce in a way that would make it a crime for a person to possess a machine gun."

Well Justice Alito and Justice Thomas are going to get along JUST fine, I see!

I love it! Eat dust you sorry liberals!


3 posted on 10/31/2005 3:36:50 PM PST by ConservativeDude
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To: MNJohnnie

"De Wine and Grahams have BOTH made public affirmations today of their intent to vote for the Constitutional Option IF the Dems try to fillibuster! That's 2 of the squishy 7!!!!!"


Incredible! Hell, we don't need no hearings. Let's just go straight to a vote on the rules...followed by a straight party line vote.


4 posted on 10/31/2005 3:38:04 PM PST by ConservativeDude
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To: neverdem

What I've read and heard spoken about Judge Alito today is very encouraging for the conservative movement. Alito appears to be pro-life, pro-2nd amendment and anti-special rights for special interest groups. I'd say that's putting the Constitution in the proper perspective of original intent.


5 posted on 10/31/2005 3:40:20 PM PST by Reagan Man (Secure our borders;punish employers who hire illegals;stop all welfare to illegals)
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To: ConservativeDude
Incredible! Hell, we don't need no hearings. Let's just go straight to a vote on the rules...followed by a straight party line vote.

What a bleedin' rollercoaster this month has been!

6 posted on 10/31/2005 3:40:49 PM PST by MNJohnnie (Merry Alitomas!)
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To: neverdem
We already know some of the dynamics of President Bush’s nomination of Judge Samuel Alito: the president’s low approval ratings, driven lower by defections from his base during the Harriet Miers episode, and his need to recapture some political ground by shifting attention from corruption and incompetence to a Supreme Court nominee who can’t be challenged as an incompetent crony.

This is such a pantload.

The president's approval ratings as related to Harriet Miers are nothing more than vapors.  After the nomination of Judge Alito, his base will be behind him all the way.  Even those not staunchly behind him on other issues, will definately rally behind him to see that Alito becomes the next justice on the SCOTUS.

The attempt to instill the idea that the Bush White House is riddled with corruption is juvenile.  One person was charged with not telling the truth.  They have not been convicted.  Now there's a crime-wave if every I saw one.  NOT!

As for incompetence, as it relates to the Miers nomination, he's moved on to nominate Alito.  Incompetence on that topic is null and void.
7 posted on 10/31/2005 3:41:33 PM PST by DoughtyOne
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To: neverdem

Agree. You can't count on Kennedy.

We still need to fill another seat, hopefully Stevens, while we still have the Senate and the White House.


8 posted on 10/31/2005 3:42:49 PM PST by Senator Goldwater
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To: neverdem
"Facing the possibility (though hardly a certainty) of a Democratic majority in the Senate after next year’s elections..."

In your wildest dreams, Tush! Oops! I mean Tushnet! In your most joyous and outlandish delusions! But not in reality.

9 posted on 10/31/2005 3:47:42 PM PST by Savage Beast (The internet is the newspaper of record.)
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To: DoughtyOne

"Incompetence on that topic is null and void."

Si senor. Let's get ready to rumble now! (And I mean with the libs...)


10 posted on 10/31/2005 3:48:55 PM PST by ConservativeDude
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To: neverdem
And he obviously disagrees with Roe v. Wade, having voted to uphold the one provision of the Pennsylvania abortion statute that the Supreme Court struck down in the Planned Parenthood v. Casey decision of 1992.

That is not necessarily an accurate assumption. Had Alito seen constitutional grounds against Roe, he probably would have said so when he upheld partial birth abortion. He differs with others mentioned for the SCOTUS short list, such as Edith Jones and Emilio Garza, who had (reluctantly) upheld abortion precedent while specifying disagreement with Roe.

Alito's judicial philosophy seems to be to fall in line with precedent. Where that will lead on the SCOTUS is anyone's guess.

11 posted on 10/31/2005 3:48:55 PM PST by Gelato
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To: neverdem
This just in from the DUnderhead site.


"We have to fight against Alito to protect America from 'Christian Talibans' overthrowing our Constitution." -- DUer



This is typical of what the "evolving constitution" types are saying about him.

Judging by that alone, I would say ALITO'S PERFECT!
12 posted on 10/31/2005 3:49:00 PM PST by spinestein (Democrats: perpetuating a culture of fear and hate.)
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To: neverdem
Assuming Roberts will remain a strong conservative Justice, which is probable but not certain, then we would have four strong conservatives versus four strong liberals, and one wishy-washy moderate who votes with the liberals on many important cases.

We need one more pick, and John Paul Stevens is 85 years old. We may get it.

I can only thank the heavens above that Miers did not get in.

13 posted on 10/31/2005 3:50:24 PM PST by Batrachian
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To: spinestein
This is typical of what the "evolving constitution" types are saying about him.

It will be an "evolving consitution" until liberalism permeates every jot and tittle of United States law. At that point, it will quit evolving.

14 posted on 10/31/2005 3:51:46 PM PST by KStorm (Tagline to go on sale at eBay soon.)
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To: Gelato
"Had Alito seen constitutional grounds against Roe, he probably would have said so when he upheld partial birth abortion."

That's a lot of reading. Can you paste in the relevant parts?

15 posted on 10/31/2005 3:53:30 PM PST by Batrachian
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To: MNJohnnie

I wasn't aware that DeWine and expressed that. That's great news.

I have a feeling the Democrats are going to let Alito go through with little opposition, and focus on Congressional elections instead. I'm sure they're aware that both Ginsburg and Stevens are this|close to retiring and would like to have better numbers if they quit in '07 or '08.

I think anyone looking for a battle is going to be disappointed. They have much more to lose if they make a public spectacle in front of a man of Alito's caliber.


16 posted on 10/31/2005 3:53:40 PM PST by Rutles4Ever (Stuck on Genius)
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To: neverdem
Testing....test test.....new tag line incoming.....

A return to unified Democratic government is so unlikely as not to be worth spending time on.

17 posted on 10/31/2005 3:58:29 PM PST by spokeshave (Alito is very conservative and was confirmed 100-0)
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To: spokeshave

test ...


18 posted on 10/31/2005 3:59:00 PM PST by spokeshave (A return to unified Democratic government is so unlikely as not to be worth spending time on.)
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To: DoughtyOne

As far as I can tell, the "ubercon" uprising has come to a happy ending for the entire GOP.

The next step is to keep Rove in the White House and get going on 2006.


19 posted on 10/31/2005 3:59:11 PM PST by Rutles4Ever (Stuck on Genius)
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To: neverdem
One element...may have been overlooked. The president is...[seeking] to consolidate conservative control of the Supreme Court.

Gosh, Fellow Freepers, that is something we never considered!! [palm on forehead slap]

20 posted on 10/31/2005 4:02:19 PM PST by Plutarch
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