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 ...
Dan
God, I love news like this...let the war/games begin.
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.
Marking.
I have gone from 99.99% supportive to 99.99999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999% supportive!
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!
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".
Lemme see, I think I need to put on my secret decoder ring?!?
Sovereign immunity = ConstitutionNow to rewrite the decoded message:
Democratic decision-making = Congress
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).
Couldn't have said it better myself.
Actually, from what I've read Alito is probably more judicially similar to Thomas than Scalia.
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?
So, he is not just Scalito, but a Scalito++.
Great. Confirm him now!
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
:-)
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.
What was Scalia smoking when he wrote that?
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.
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?
I think he hates potheads. Sadly this is judicial activism.
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