The New Republic

For those who believe in bipartisan judicial restraint, Samuel Alito
Jr. poses a dilemma. On the one hand, his vote to strike down a
federal ban on machine gun possession in 1996 suggests that he
might be a conservative activist who is determined to resurrect
limits on congressional authority that have been dormant since the
New Deal. On the other hand, many of his other opinions support the
judgment of those who know him: that he is a fair-minded
conservative incrementalist, closer to Chief Justice John Roberts
than to a radical conservative like Justice Clarence Thomas.How can those (like me) who remain unsure about how restrained a
Justice Alito would be make up our minds? The question shouldn't be
whether he would cast himself as a swing vote in the style of
Sandra Day O'Connor, the justice he would replace, since the last
thing the country needs is another O'Connor to short-circuit all of
our most contested political debates. By splitting every
difference, she aggrandized her own power at the expense of Congress
and the states. Instead, the relevant question is whether Alito
generally believes in judicial deference to Congress, the states,
and previous Supreme Court precedents, or whether he has an agenda
to turn back the constitutional clock to the pre-New Deal era. That
is a question that his hearings can answer; and the very different
confirmation performances of Thomas and Roberts provide clues for
the Senate about how to distinguish reassuring testimonies from
troubling ones.

The case that suggests Alito might be a conservative activist (see
"How to Judge," November 29, 2004) was his dissent nearly a decade
ago from his colleagues' decision to uphold the constitutionality
of a federal law prohibiting the possession or transfer of machine
guns. Six federal circuit courts had upheld the ban on machine gun
possession. Showing an unsettling lack of deference to Congress,
the president, and the judgment of other appeals courts, Alito
dissented on the grounds that Congress and the president had not
produced empirical evidence that there was a substantial connection
between gun possession and interstate commerce. Last June, by a
six-to-three vote, the Supreme Court implicitly rejected Alito's
reasoning. In upholding Congress's power to regulate the local
possession of marijuana, the Court emphasized that it had never
required Congress to make specific empirical findings in order to
legislate and that Congress's power to regulate purely local
activities should be upheld as long as a rational person might
believe that they affected interstate commerce. Only O'Connor,
Thomas, and then-Chief Justice William H. Rehnquist dissented,
suggesting that Alito might be among the most high-octane
enthusiasts for federalism on the Court.

Almost as troubling for those who oppose conservative judicial
activism was Alito's 2000 opinion holding that Congress had no
power to authorize suits against state employers who violate the
sick leave provisions of the Family and Medical Leave Act.
Repeating his habit of flyspecking Congress's legislative
authority, Alito's majority opinion objected that Congress had the
power only to ban intentional sex discrimination and that it had
failed to make specific findings that employers who violated sick
leave policies might contribute to discrimination against women.
Three years later, in another six-to-three decision, the Supreme
Court said that Congress did have the power to authorize these
suits, on the grounds that Congress had considered "significant
evidence of a long and extensive history of sex discrimination with
respect to the administration of leave benefits by the States."
Although the Court didn't explicitly reject Alito's analysis, his
two leading opinions on federalism suggest an unsettling lack of
deference to Congress.

So the case for Alito as a conservative activist focuses on his
cramped view of congressional power. By contrast, his abortion
opinions--which have been hyperbolically attacked by liberal
interest groups--are impressively nuanced and restrained. In his
most controversial opinion, Alito dissented from his colleagues'
decision in 1991 to uphold a Pennsylvania law that required women
to notify their husbands before seeking an abortion. The following
year, reaffirming Roe v. Wade in Planned Parenthood v. Casey, the
Supreme Court, by a five-to-four vote, repudiated Alito's analysis.
A section of the opinion written by O'Connor rejected Alito's
conclusion that the spousal notification law would affect very few
women, emphasizing that the small group most likely to be affected
was also the one with the best reasons to be afraid of notifying
husbands. But Alito, who tried in good faith to apply O'Connor's
confusing "undue burden" test, shouldn't be blamed for failing to
predict O'Connor's vote; and, in the end, he erred on the side of
deferring to the state legislature, which is the most neutral
definition of judicial restraint.

Three of Alito's other encounters with abortion disputes are
similarly scrupulous. He voted without fuss to apply the Supreme
Court's 2000 decision striking down bans on partial-birth abortion.
In a wrongful death case in 1997, he emphasized that a fetus is not
a "person" entitled to constitutional protection under the
Fourteenth Amendment-- a pivotal opinion that could have broad
implications for future battles over assisted reproductive
technologies. Some conservative scholars assert unconvincingly that
the Framers of the Fourteenth Amendment meant to protect fetuses;
by rejecting that historically implausible claim, Alito signaled
his willingness to allow future battles over reproductive
technology to be decided in legislatures, where they belong.
Finally, ten years ago, Alito cast a decisive vote in a two-to-one
opinion, holding that the federal government's limits on the use of
public funds for abortions prevented Pennsylvania from adopting
even more severe abortion restrictions.

Liberals also worry about Alito's apparent lack of concern for
unchecked police and executive authority, especially since O'Connor
was more willing to second-guess the president and the police. But,
if Alito's deference to the police is part of a general tendency to
defer to politically accountable officials, it may suggest that his
federalism decisions are an anomaly. As Adam Liptak and Jonathan D.
Glater of The New York Times noted in a review of Alito's 67
dissenting opinions, "He generally deferred to what he called the
good faith judgments of other participants in the justice system,
including police officers, prosecutors, prison wardens, trial
judges and juries." Nevertheless, privacy advocates haven't given
up hope on Alito who, as a Princeton senior in 1971, helped to
write an expansive report on the boundaries of privacy in American
society that called for congressional regulation of computer
surveillance and other high-tech searches as well as the repeal of
anti-sodomy laws. Only the Senate can determine whether Alito's
youthful concerns about privacy might be resurrected on the high
court.

The most reassuring evidence that Alito might be a conservative
incrementalist comes from those who have worked with him in the
past. "Sam is cautious, he is deliberative, he had a judicial
temperament even when he wasn't a judge," says Joshua Schwartz, a
colleague of mine at George Washington University Law School who
worked with Alito in the Solicitor General's Office during the
Reagan era. "He was an enormous believer in hearing both sides in
every case; he was patient and careful--and reasonably content to
decide cases one by one, applying existing precedents rather than
writing sweeping critiques of the Supreme Court's jurisprudence."
And Schwartz recalls that, when Alito was tapped to supervise cases
involving the Reagan administration's efforts to overturn
affirmative action, he resisted some of the more extreme arguments
advanced by Assistant Attorney General William Bradford Reynolds.

Here, then, is the dilemma posed by Judge Alito: His federalism
opinions suggest that he might be a conservative activist like
Thomas with an agenda to restrict congressional power; many of his
other opinions suggest that he might be a cautious incrementalist,
as Roberts is likely to be, nudging the law in a more conservative
direction rather than rewriting it from the ground up. Given the
conflicting evidence, how can senators decide what kind of justice
Alito would be? The questions to ask Alito are obvious enough.
They're many of the same ones that have been asked in Supreme Court
confirmation hearings for nearly two decades, and they involve the
nominee's attitudes toward congressional power, previous judicial
precedents, and the original understanding of the Constitution.

The contrast in the answers given by Thomas and Roberts suggest
clues for senators to look for as they try to decode Alito's
responses. If Alito is evasive, as Thomas was, about a) how often
the Court should strike down federal laws; b) how much weight it
should give precedents that have been repeatedly reaffirmed; or c)
how rigidly it should follow the original understanding of the
Constitution, run for the hills. If he answers those questions
precisely and candidly, as Roberts did, breathe a sigh of relief.

Thomas's testimony, in particular, reminds us that it's easy for
nominees to mislead the Senate in confirmation hearings. But, by
pressing nominees to give specific and detailed answers--as Roberts
did--the Senate is more likely to get an accurate sense of how
those nominees would perform on the Court. (We haven't yet seen
many opinions from Roberts, of course, but the precision of his
answers makes a surprise less likely.) First, consider federalism.
Both Thomas and Roberts were asked whether they thought the
Commerce Clause imposed limits on congressional power. Thomas
answered in platitudes, telling Senator Arlen Specter, "I don't
know whether we know what the limits are." After assuring Specter
that "I don't question the current development of the Commerce
Clause," Thomas wrote a judicial opinion only four years later
declaring that the entire development of the Commerce Clause since
the 1930s was legally misguided and should be reversed. Roberts, on
the other hand, was much more specific in making clear that he
thought the Court should strike down acts of Congress only on rare
occasions. He quoted Justice Oliver Wendell Holmes's observation
that striking down federal laws is the "gravest and most delicate
duty that the Court performs." And he stressed that "the reason is
obvious: All judges are acutely aware of the fact that millions and
millions of people have voted for you, and not one has voted for
any of us." It's not clear whether Alito shares Roberts's concerns
about judicial modesty when reviewing acts of Congress; the
specific reasons he gives when talking about the importance of
judicial restraint should cast light on whether he does.

Next, consider a nominee's willingness to overrule precedents.
During his confirmation hearings, Thomas refused to say how much
deference he would give to previous decisions that he thought were
wrong. But he earnestly told Senator Patrick Leahy, "You cannot,
simply because you have the votes, begin to change rules, to change
a precedent. ... On a personal level as a judge, I, at the end of
the day, if I made a decision in a case that way--that willfully--I
could not say to myself in the mirror that I have acted consistent
with my oath." Contrast these protestations with his record on the
Court, where, according to his colleague Justice Antonin Scalia,
Thomas will vote to overturn any precedent that he thinks is wrong.
Roberts, on the other hand, spoke in specific terms about the
weight the Court should give to various factors in deciding whether
to overturn an incorrect decision. He told Specter, "If an
overruling of a prior precedent is a jolt to the legal system, it
is inconsistent with principles of stability."

In his own courtesy visit with Specter, Alito declined to embrace
the idea that certain decisions that have been accepted by
different presidents, Congresses, and courts over time might
qualify as a kind of "super-stare decisis" (or super-precedent).
But Alito endorsed the idea of a "sliding scale, " according to
Specter, and suggested, "The longer a decision was in effect and
the more times that it had been reaffirmed by different courts,
different justices appointed by different presidents, it had
extra-precedential value." By pressing him to give specific
examples of precedents that deserve special weight, senators could
flesh out whether his stated views about stability are sincere or
fig leaves.

Finally, there is the question of a nominee's judicial philosophy.
During his hearings, Thomas insisted to Senator Joseph Biden that
his interest in natural law-based constitutional theories, such as
those of Professor Richard Epstein of the University of Chicago,
had been "purely in the context of political theory." Only four
years later, however, in U.S. v. Lopez, Thomas proceeded to try to
write Epstein's theories into law. Moreover--although Thomas
emphasized in his hearings that "the important point is, What did
the Framers think they were doing? What were their views?"--he
stressed that "the world didn't stop with the Framers. ... You then
look at the rest of the history and tradition of our country." On
the bench, however, Thomas has distinguished himself for insisting
that the world did stop with the Framers and any law inconsistent
with their original vision should be overturned. Roberts, by
contrast, refused to embrace a jurisprudence of original
understanding or natural rights. "I do not have an overarching
judicial philosophy that I bring to every case," he said, "I tend
to look at the cases from the bottom up rather than the top down."

As for Alito, his views about constitutional originalism remain
opaque. Some of his supporters have insisted that he is a reliable
originalist, but his opinions rarely invoke constitutional history
in a systematic way. By pressing Alito to give specific examples of
when and how he thinks the original understanding of the
Constitution should bind judges, and when it shouldn't, senators
will have a better idea of whether Alito is a bottom-up judge like
Roberts or a top-down judge like Thomas.

Trying to make an informed judgment about whether Alito will be a
conservative activist, in the model of Thomas or O'Connor, or a
principled judge devoted to bipartisan restraint may be one of the
harder challenges facing the Senate since the confirmation process
went haywire after the defeat of Robert Bork in 1987. But the
contrast between the responses of Thomas and Roberts demonstrates
that nominees reveal more of themselves under the klieg lights than
senators appreciate at the time. If Alito is precise, detailed, and
specific about his devotion to restraint, senators can vote their
hopes; if he is evasive and abstract, they should vote their
fears.

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