NOVEMBER 14, 2005
THE NOMINATION THIS WEEK of Judge Samuel A. Alito Jr. to succeed Justice Sandra Day O’Connor set off a predictable scurry to divine what kind of justice he might make and, in particular, to decipher whether the judge commonly tagged "Scalito" would live up to that moniker. The verdict on the latter question was swift. After skimming his opinions and interviewing his friends and associates, nearly every source concluded that Alito and Justice Antonin Scalia share little beyond Italian-American heritage, Catholicism, and a conservative voting record.
In particular, those familiar with Alito stressed that his even-keeled temperament, collegiality, and lawyerly writing style distinguished his professional demeanor from that of the volatile, sarcastic, and often hectoring Scalia. The nearly universal conclusion was that Alito was less of a Scalia clone than some of the other federal judges considered for the post, most notably the rumored runner-up, Judge J. Michael Luttig.
The implication of this conclusion was that liberals should breathe a sigh of relief, since Alito is no Scalia 2.0. The reality, however, is much more complicated. While Scalia’s bellicose tone and general lack of civility have long been fodder for his left-wing critics, they have also served to hold back his judicial agenda, both by alienating potential allies within the Court and by marking his ideas as extreme in the court of public opinion. But Alito, who marries Scalia’s conservative jurisprudence with tact, politeness, and a deferential writing style, is infinitely more dangerous to liberals. In Alito, they may have met their worst nightmare.
IN 15 YEARS ON THE BENCH, Alito has had opportunities to weigh in on almost all of the controversial constitutional issues facing the Supreme Court today-- from abortion and the death penalty to the scope of federal power and the role of religion in the public square. The opinions that he has written in these cases share two essential characteristics. First, each is calm, rational, and well-written. Second, on virtually every significant issue where his conclusion is not mandated by direct Supreme Court precedent, the result is conservative.
These traits are notable in Alito’s first major constitutional opinion, his partial dissent in Planned Parenthood v. Casey. In that 1991 case, Alito was one of three judges responsible for evaluating the constitutionality of a number of new abortion restrictions adopted by Pennsylvania, including a controversial spousal notification provision. Alito was the only judge who argued that the spousal notification provision passed constitutional muster (a conclusion ultimately rejected by the Supreme Court). But, in reaching that conclusion, Alito moved cautiously toward his bold result, carefully mustering quotations from O’Connor’s various abortion opinions (ultimately using nearly two dozen different quotations from her abortion writings), debating countervailing evidence, and repeatedly downplaying the scope of his disagreement with his colleagues (at one point all but admitting that the case turns on how one interprets a single cryptic sentence in an O’Connor concurring opinion). Read in isolation, Alito’s opinion gives the impression of a conscientious jurist doing his best to tame and apply difficult legal texts. The author’s will is largely absent from the text of the opinion.
In a 1996 case challenging Congress’s power to ban the possession of machine guns, Alito again faced a hot-button constitutional issue on which the Supreme Court’s decisions were cryptic and in flux. The other two judges on the panel joined all of the other federal courts of appeals in rejecting the gun owner’s challenge, but Alito dissented. Again, he parsed the relevant Supreme Court opinions in painstaking detail; again, he openly acknowledged and engaged countervailing evidence (for example, noting, with regard to the majority’s central argument, that "I take this theory very seriously"); again, he played down the scope of his disagreement with his colleagues (by commenting that the majority "quite properly focuses its analysis" on a particular doctrinal point). And, again, he reached a boldly conservative result.
In recent years, Alito has honed his ability to write lucid, polite opinions reaching invariably conservative positions on a string of issues that have divided the current Court--from the scope of a capital defendant’s right to the effective assistance of counsel during the penalty phase of his trial, to the breadth of governmental officials’ immunity from liability when they inadvertently violate the constitutional rights of citizens, to the proper interpretation of the Establishment Clause. For example, in the 1999 case American Civil Liberties Union of New Jersey v. Schundler, Alito wrote an opinion for a divided panel evaluating the constitutionality of a Jersey City holiday display containing, among other things, a menorah, a creche, a Christmas tree, and large plastic figures of Santa Claus and Frosty the Snowman. The heart of his opinion is an almost comically detailed dissection of the Supreme Court’s relevant writings and their implications for this case. He notes, for example, that the display in one of the Supreme Court cases "included fewer religious symbols" than the one in Jersey City--a "menorah only" versus "both a menorah on the left side of City Hall and a creche on the right." Along the way, Alito, as usual, finds time to acknowledge the aspects of the Supreme Court precedents that potentially cut against his argument before reaching the predictable conclusion that Jersey City’s display does not violate the Establishment Clause. Whatever one thinks of the opinion’s conclusion, it is hard to come away from it with anything other than affection for its careful and patient author.
TWO LESSONS CAN be drawn from the substance and tone of Alito’s appellate opinions. First, contrary to what many commentators want you to believe, the individual predilections and judgments of jurists have a substantial effect on the direction of U.S. constitutional law. While many legal questions can be resolved through a relatively straightforward application of reason to the relevant legal texts, most of the controversial constitutional questions that reach the Court are not susceptible to such simple resolution. When confronting such cases, judges are forced back--almost inexorably--to their own, often inchoate, ideas about human behavior, social policy, and the judicial role. For most Supreme Court nominees, we need to guess how these "priors" will shape their jurisprudence, but, for Alito, we have a long and consistent answer: He will tack hard to the right.
The second lesson is really a caveat about the first. With the opinions of most justices--particularly the savvy--it’s hard for a reader to separate the application of legal sources and precedents from individual will. The norms of the legal profession push judges to ground their opinions directly in the legal sources, whatever the wellspring of their decisions. Those who are accomplished at this task have the ability to make even the most controversial result sound inevitable. In a substantial percentage of their cases, Scalia and Luttig eschew these professional conventions and lay bare their motivation. Alito never does. In many ways, the scrupulous fidelity of Alito’s opinions makes him a more powerful advocate for his conclusions and a bigger danger to those who sport opposing legal or constitutional visions.
If Alito were to join the Supreme Court, his opinions would instantly gain a larger audience and a more central role in U.S. jurisprudence. Moreover, freed from the shackles of operating with a higher court looking over his shoulder, he would almost certainly expand his horizons. If one follows the little clues dropped (modestly) into his appellate opinions, Alito is brimming with ideas for pushing the boundaries of existing doctrine to the right in a number of crucial, albeit low-profile, areas, such as federal employment discrimination law, search and seizure law, and the rules governing the susceptibility of public officials to lawsuits.
In the end, however, if Judge Alito becomes Justice Alito, his greatest influence might stem not from his vote or his pen but from his collegiality. For more than three decades, efforts to assemble a consistent right-wing majority on the Supreme Court have foundered, at least in part because of personality conflicts among the conservative justices. To take the highest- profile example, as the history of the Rehnquist Court gradually comes to light, it becomes increasingly clear that Scalia’s unwillingness to credit the intelligence and good faith of those who disagree with him took a particular toll on his relationship with O’Connor, potentially costing him a decisive vote to overturn Roe v. Wade and almost certainly costing him majorities in a slew of lower-profile cases.
Unless Alito undergoes a personality transplant if he enters the Beltway, it is literally impossible to imagine him demeaning the qualifications of a colleague, exasperating his fellow justices by hogging the spotlight at oral argument, or running his mouth off in a speech or a dissenting opinion to blow off steam. In his years on the Third Circuit, Alito’s decency and civility have earned him respect across ideological lines. Recently, former colleague Timothy Lewis endorsed his Supreme Court candidacy and said that another colleague, the late Chief Judge A. Leon Higginbotham Jr., a notoriously hostile critic of Scalia and Justice Clarence Thomas, had also praised Alito.
If you are a fan of the justices who fought throughout the Rehnquist years to pull the Supreme Court to the right, Alito is a home run--a strong and consistent conservative with the skill to craft opinions that make radical results appear inevitable and the ability to build trusting professional relationships across ideological lines. If, on the other hand, you are a committed opponent of the Scalia-Thomas-Rehnquist agenda who has been carefully evaluating O’Connor’s potential replacements with concern for the Court’s future direction, Alito might be the most dangerous possible nominee.
Andrew M. Siegel is an assistant professor at the University of South Carolina School of Law and a former law clerk to Supreme Court Justice John Paul Stevens. This article appeared in the November 14, 2005 issue of the magazine.