Alito or Scalito? (If you're a liberal, you'd prefer Scalia)

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.

Your seventh grade civics class sucked.

The purpose of the Supreme Court is to reconcile differences between competing sectors of government, such as two states, or a state and the federal government, or when Congress has passed conflicting laws.

Given that, it is entirely sensible for the Court to establish that a given congressional statute (lower law) is in inadverdent conflict with a higher law (the constitution) and rule that the higher law takes precedence. The first check against Congress passing unconstitutional law is Congress itself. After that, the President can veto ("I refuse") a law, which he believes in unconstitutional. It is gravely unfortunate that the Presidential veto has become a means of the President wielding legislative power, rather than executive power. Congress can, however, disagree with the President and override his veto, and I don't believe it was not unheard of for Senators to override a veto of a bill they hadn't liked because they believed the president was wrong to legislate by vetoing it.

It is far more questionnable (and in my mind, quite unlikely) that the founding fathers intended for the Court to have the authority to override an interpretation of Congress and the President that a given law is unconstitutional. And it is absolutely abominable for the president to sign a law which he believes is likely unconstitutional in the expectation that the Supreme Court will strike it down for him.

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