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Alito or Scalito? (If you're a liberal, you'd prefer Scalia)
Slate ^ | November 2, 2005 | Robert Gordon

Posted on 11/02/2005 11:37:19 AM PST by RWR8189

In the great Alito-Scalito debate, everyone makes one mistake: They seem to assume that if Samuel Alito is as conservative as Antonin Scalia, that's about as conservative as a judge can be. Not so. In important ways, Samuel Alito could prove more conservative than Antonin Scalia. And the record suggests he will.

Yes, Alito shares Justice Antonin Scalia's ambivalence toward judicial activism. Both men tout their own restraint in deferring to majorities that step on individual rights (including a woman's decision whether to bear a child). Both men also act aggressively to override majorities that touch states' rights like sovereign immunity from lawsuits. And neither Scalia nor Alito has really explained how to reconcile the criticism of activism on one front with the embrace of activism on the other.

In 2000, Alito concluded that Congress had improperly allowed workers to sue states for violations of the Family and Medical Leave Act. That conclusion anticipated a dissent by Justice Scalia three years later, when Chief Justice Rehnquist rather shockingly upheld the leave law in Nevada v. Hibbs. Both Alito and Scalia's views of sovereign immunity trumped their deference to democratic decision-making.

But that is just part of the story. Scalia has actually proved to be less adventuresome than Alito in curtailing congressional power. Alito wrote a dissenting opinion in 1998 arguing that Congress couldn't bar possession of a machine gun, because merely having a machine gun isn't connected closely enough to the thing Congress can constitutionally regulate—interstate commerce. Alito relied on a 1995 Supreme Court case saying Congress couldn't constitutionally regulate the possession of a handgun near a school. Every court of appeals, save one, that reached this question rejected Alito's position.

(Excerpt) Read more at slate.com ...


TOPICS: Constitution/Conservatism; Editorial; Government; News/Current Events; Politics/Elections
KEYWORDS: alito; antoninscalia; judgealito; samalito; samuelalito; scalia; scalito; scotus
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1 posted on 11/02/2005 11:37:21 AM PST by RWR8189
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To: RWR8189
Check out my blogged comments on this essay, if you like. It's titled, Dude... finish your sentence (if you're not too chicken) .

Dan

2 posted on 11/02/2005 11:39:17 AM PST by BibChr ("...behold, they have rejected the word of the LORD, so what wisdom is in them?" [Jer. 8:9])
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To: RWR8189

God, I love news like this...let the war/games begin.


3 posted on 11/02/2005 11:42:09 AM PST by el_texicano (Liberals, Socialist, DemocRATS, all touchy, feely, mind numbed robots, useless idiots all)
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To: RWR8189
And neither Scalia nor Alito has really explained how to reconcile the criticism of activism on one front with the embrace of activism on the other.

I'm sure it couldn't be that, where Alito is 'activist,' the constitution limits the government powers and Alito thinks we should enforce that. OTOH, where he is not, the constitution does not prescribe the expansion of judicial powers to made-up rights.

4 posted on 11/02/2005 11:46:56 AM PST by ModelBreaker
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To: RWR8189
"And neither Scalia nor Alito has really explained how to reconcile the criticism of activism on one front with the embrace of activism on the other."

This is a fairly idiotic thing for Robert Gorton to say. Why would it be activist to overrule a federal law's application to a state because it violates the 10th amendment, but not activist to overrule a state law because it's contradicted by a federal one?
5 posted on 11/02/2005 11:56:36 AM PST by Moral Hazard ("Now therefore kill every male among the little ones" - Numbers 31:17)
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To: RWR8189

Marking.


6 posted on 11/02/2005 11:59:25 AM PST by TAdams8591 (It's the Supreme Court, stupid!)
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To: RWR8189
Alito is MORE CONSERVATIVE THAN SCALIA??

I have gone from 99.99% supportive to 99.99999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999% supportive!

7 posted on 11/02/2005 12:05:16 PM PST by Recovering_Democrat (I am SO glad to no longer be associated with the party of Dependence on Government!)
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To: ModelBreaker
The type of reasoning in the quote you cited stems from the liberal attempt to define overturning judicial precedent that conflicts with the originalist interpretation of the Constitution or statute in question as being activist. An originalist would argue that activism is a justice deciding law based on personal or political belief rather than what the law says and was intended to mean at the time it was adopted.

That's why discussing whether a justice is "conservative" or "liberal" should be irrelevant. That's the value of a consistent judicial interpretation. If you take two people, one a married, fundamentalist evangelical, meat-eating, gun-owning firebrand justice and the other a gay, devil-worshipping, vegetarian who believes in conflict resolution classes for naughty people, with an originalist judicial philosphy, chances are you're more often than not going to get the same decision.

That's not to say there can't be different interpretations even within the originalist philosophy. It also doesn't mean that personal views won't ever intrude....it does mean that it is less likely to happen if you are rooted in a particular discipline of interpretation. It also means you're less likely to drift and grow over time. I think the fact that Judge Alito has been on the 3rd Circuit Court of Appeals (one of the more liberal Courts) for 15 years and has shown no sign of leftward drift is one of the strongest arguments in his favor as well as a good demonstration of how a judicial philosophy grounds you.

One other quote from the article I found amusing was "In the Washington Post, Cass Sunstein examined Alito's dissents and found them "almost uniformly conservative." Cass Sunstein is so liberal, I'm sure he say the same thing about the Constitution itself!

8 posted on 11/02/2005 12:05:35 PM PST by MarcusTulliusCicero
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To: Moral Hazard
And neither Scalia nor Alito has really explained how to reconcile the criticism of activism on one front with the embrace of activism on the other.

To the libs a conservative activist is someone who interperts the constitution as written, a judge who deems the Constitution a "living document" is "progressive".

9 posted on 11/02/2005 12:09:47 PM PST by Graybeard58 (Remember and pray for Sgt. Matt Maupin - MIA/POW- Iraq since 04/09/04)
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To: RWR8189
"Both Alito and Scalia's views of sovereign immunity trumped their deference to democratic decision-making."

Lemme see, I think I need to put on my secret decoder ring?!?

Sovereign immunity = Constitution
Democratic decision-making = Congress
Now to rewrite the decoded message:
Both Alito and Scalia's views of the Constitution trumped their deference to Congress."

I fail to see a problem here, Congress 'ain't' always correct. After all, ts not like they've never passed unconstitutional laws (Hi John McCain).

10 posted on 11/02/2005 12:10:41 PM PST by Condor51 (Leftists are moral and intellectual parasites - Standing Wolf)
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To: MarcusTulliusCicero
The type of reasoning in the quote you cited stems from the liberal attempt to define overturning judicial precedent that conflicts with the originalist interpretation of the Constitution or statute in question as being activist. An originalist would argue that activism is a justice deciding law based on personal or political belief rather than what the law says and was intended to mean at the time it was adopted.

Couldn't have said it better myself.

11 posted on 11/02/2005 12:10:45 PM PST by ModelBreaker
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To: Recovering_Democrat

Actually, from what I've read Alito is probably more judicially similar to Thomas than Scalia.


12 posted on 11/02/2005 12:28:15 PM PST by RockinRight (Itís likely for a Conservative to be a Republican, but not always the other way around)
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To: Condor51

Both Alito and Scalia's views of the Constitution trumped their deference to Congress."

isn't that the whole point of HAVING a supreme court? to overrule unconstitutional laws passed by congress?


13 posted on 11/02/2005 12:28:57 PM PST by absolootezer0 ("My God, why have you forsaken us.. no wait, its the liberals that have forsaken you... my bad")
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To: Recovering_Democrat

So, he is not just Scalito, but a Scalito++.

Great. Confirm him now!


14 posted on 11/02/2005 12:29:35 PM PST by indianrightwinger
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To: absolootezer0
***isn't that the whole point of HAVING a supreme court? to overrule unconstitutional laws passed by congress?***

Yeah that's how I remember my 7th Grade Civics class. Apparently this Robert Gordon person was home sick that week.

Or more likely, he's terminally STOO-PID

:-)

15 posted on 11/02/2005 12:36:53 PM PST by Condor51 (Leftists are moral and intellectual parasites - Standing Wolf)
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To: RWR8189
In other words, if Congress can stop gun trafficking, which is clearly commerce, Congress can also stop people from having machine guns in order to choke off trafficking.

In other words, if Congress can stop piracy on the high seas, which is a crime clearly placed within federal jurisdiction by the Constitution, Congress can also stop people from going to sea in order to choke off the supply of booty.

At least, that's how Liberalland legal logic works.

16 posted on 11/02/2005 12:52:23 PM PST by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: RWR8189
Justice Scalia himself adopted this common-sense (by leftie Bizarro World standards) logic last year—not in addressing gun possession, but in agreeing with the court's liberals that Congress could stop local production of marijuana as a way to get at interstate drug dealing. Scalia wrote that the "regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intra­state activity does not itself 'substantially affect' inter­state commerce."

What was Scalia smoking when he wrote that?

17 posted on 11/02/2005 12:53:52 PM PST by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: RWR8189

This is the second article I've read that concludes Alito is even to the right of Scalia.

My own thinking is that he's more of a softie than Scalia, but let them hyperventilate about it all they want. I think the Republicans will have all their ducks in a row sufficiently to cram him down the throats of Demonrats when the vote does come.


18 posted on 11/02/2005 12:55:03 PM PST by Kryptonite (McCain, Graham, Warner, Snowe, Collins, DeWine, Chafee - put them in your sights)
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To: RWR8189

WAHOOO!

See what happens when you hold the President's feet to the fire!

All you bushbots who though that Miers was just fine... where do I ship the crow?


19 posted on 11/02/2005 12:55:58 PM PST by Little Ray (I'm a reactionary, hirsute, gun-owning, knuckle dragging, Christian Neanderthal and proud of it!)
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To: steve-b

I think he hates potheads. Sadly this is judicial activism.


20 posted on 11/02/2005 12:59:36 PM PST by zendari
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