Is Alito Even Worse Than Roberts? Let's Hope.

Jacob Sullum | October 31, 2005

Although it's supposed to be alarming, People for the American Way's "preliminary review" of Supreme Court nominee Samuel Alito's judicial record seems mostly reassuring to me after a quick read. Alito's conclusion that a ban on possession of machine guns exceeds Congress' authority under the Commerce Clause, which PFAW says "raises very troubling questions," is especially encouraging. Of course, there's always the danger, as with John Roberts, that Alito won't live up to his bad press. But judging from the gun case, his inclination to impose limits on congressional power is clearer than Roberts'.

Comments

|10.31.05 @ 10:52AM|#

The only negative I see so far is that he is a former prosecutor. If there is one view-point overrepresented in SCOTUS right now, it is that of prosecutors. Scalia, Thomas and Kennedy all have a bizarre world-view that there are too many roadblocks in the law for the well-intentioned prosecutors to do their job properly. We don't need another one of those.

What we could use is someone with a history of defending clients in the criminal system. I'm no fan of Brennan or Marshall, but they brought something to the table with respect to that viewpoint that is missing from current SCOTUS jurisprudence (regardless of whether any of the current Justices actually have such a background).

|10.31.05 @ 10:56AM|#

An effort to limit the marketing of alcohol to college students in Pennsylvania suffered a setback last month. A three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that a 1996 state law banning alcohol ads in college newspapers is unconstitutional.

Judge Samuel Alito wrote in the 17-page opinion that students are already exposed to a "torrent of beer ads" in other publications and on television and radio.

|10.31.05 @ 11:10AM|#

This is pretty troubling:

"In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. [Doe v. Groody, 2004]"

|10.31.05 @ 11:20AM|#

chris green - context for assessing his argument in that case would be tremendously helpful. got links?

|10.31.05 @ 11:23AM|#

In his own particular way, this guy will be a nightmare when it comes to some issues.

|10.31.05 @ 11:24AM|#

Adam,

The context is that cops can do just about anything they want to, and almost anything is "reasonable."

Britton|10.31.05 @ 11:25AM|#

Context for chris green's snippet is in the PFAW "preliminary review" that is linked in the original post.

|10.31.05 @ 11:26AM|#

I believe its fairly unfortunate that Sullum has to depend upon People for the American Way for its rating system to come to an initial judgment. Libertarians need their own group like this so that we don't get a skewed image of a person.

|10.31.05 @ 11:27AM|#

This is the sort of guy I was expecting the first time. Volokh says he's known as "Scalito" in some circles.

I suspect he will be too statist on the conservative front for our comfort, but will be generally serious and thoughtful. I can live with it, I think. At least he isn't a blatantly unqualified crony. That's what passes for cheerleading these days ...

Sandy|10.31.05 @ 11:28AM|#

A man's wife and daughter is his home. A man's home is his castle. All castles have moats. Therefore, a man's wife and daughter have moats.

-Judge Alito.

|10.31.05 @ 11:29AM|#

"In his own particular way, this guy will be a nightmare when it comes to some issues"

Of course, hak, sure bet! But pray tell, do you know a hypothetical nominee who wouldn't?

|10.31.05 @ 11:32AM|#

Harry Reid quickly came up with two reasons why Alito is inappropriate. Number one: Bush didn't consult with Democrats. Number two: Alito lacks a vagina.

(Check this lame press release: http://democrats.senate.gov/~dpc/press/05/2005A31334.html)

For chrissake, Dems. Can you try not to make it so easy?

How about asking whether "Scalito," like Scalia, believes that the government's ultimate legal authority derives from almighty God, as opposed to "We the People"? How about asking whether he agrees that there is practically no limit to "interstate commerce"? Or if he agrees that private property rights can be tossed away if your municipality needs to build a new aquarium?

Oh, and is there a "right to privacy"?

The libertarians are just waiting for a reason to bolt from the Republicans, but we're not zipping off to join a bunch of whiny bitches! Put the gloves on, already!

|10.31.05 @ 11:32AM|#

Alito's conclusion that a ban on possession of machine guns exceeds Congress' authority under the Commerce Clause, which PFAW says "raises very troubling questions," is especially encouraging

Interesting, coming from you, Jacob, regarding your stance (and a very good one, I might add) on the flaws in U.S. Drug Policy.

"Scalito" (as he has been delightfully named) will no doubt register the same hypocrisy that Scalia has adopted when comes to applying the commerce clause to medical marijuana cases.

And let's see if he follows Scalia's suit on Fourth Amendment issues. Judging from chris green's post, there's little to get excited about in this guy...and a lot to be wary of.

|10.31.05 @ 11:48AM|#

Another statist with serious wood for the police state. I preferred the unqualified crony. At least it's not Roy Moore, although he'd be more entertaining.

Britton|10.31.05 @ 11:51AM|#

He's no Rogers Brown.

|10.31.05 @ 11:52AM|#

The bottomline is pick your poison. You are not going to get a expansive 4th Amendment guy from a Republican Administration. You might, however, get someone who has a rational view of the commerce clause and the Second Amendment. You can get an expansive 4th Amendment guy out of a Democratic administration but they are likely to view the commerce claus as a free pass to Congress and be anti-second Amendment. This guy seems to fit the best case scenerio for a Republican appointee. Given a choice, while I am sympathetic to the objections on the 4th Amendment, I will take a judge who will let me keep my guns and put some limits on the power of Congress.

|10.31.05 @ 11:59AM|#

Hakluyt,

It's entirely possible and plausible that he's a shill for prosecutors, but it's also possible that the police knocked down the door and saw the mother simultaneously stuffing her bra with crack and shoving some down the pants of her ten year old daughter.

|10.31.05 @ 12:03PM|#

John,

Can't disagree out of hand. But at the end of the day, I'm less interested in limits on congressional power and more interested in limits on my personal liberty.

I disagree that he'll have a rational view of the commerce clause for the very reason I alluded to above.

Conservatives in the "mold of Scalia and Thomas" have been notorious in their inconsistent cherry-picking of commerce clause applications.

|10.31.05 @ 12:05PM|#

Adam,

The point is that the facts don't matter. Barring the cops at gunpoint forcing someone to fuck a pig, the courts are going to be wary of attacking authority of the cops, and are going to bend to their on the spot discretionary judgment.

|10.31.05 @ 12:06PM|#

Conservatives in the "mold of Scalia and Thomas" have been notorious in their inconsistent cherry-picking of commerce clause applications.

I will agree with that but only on the medical marijuana case. Otherwise they have done yomans work in bringing the commerce clause back to life. Also, Scalia especially hasn't been nearly as anti-criminal defendent as his critics make him out to be. I would point to the case involving jury trials in death penalty cases where Scalia said that the Consitution meant what it said and people were entitled to jury trials at all critical phases of their trial and the "living Constitution" types on the left just read the right to a jury trial right out of the Constitution. These issues are not as clear cut as the spin makes them out to be.

|10.31.05 @ 12:10PM|#

John,

For the most part, they continue to view the Commerce Clause expansively - except where their politicial sensibilities lay.

|10.31.05 @ 12:12PM|#

Hakluyt,

Not bad on your part for shooting from the hip. Google doe v. groody and the 3rd circuit decision's at the top of the list. Alito's argument? Essentially that the magistrate and the police intended the warrant to allow the search of everyone on the premises, though the warrant didn't actually specify it.

But who wants to get caught up in messy details like that? They had methamphetamine, goddammit, and don'tcha know there's an epidemic going on? Think of the (18-to-50 year old) children!

|10.31.05 @ 12:16PM|#

The cops said the search of the 10 year old was part of a "protective sweep." Criminy. And Alito ate that turd sandwich?

|10.31.05 @ 12:17PM|#

John,

BTW, we'll see how principled Scalia is when it comes to the case concerning Oregon's "Death With Dignity Act." I guarantee you he will vote for the federal government in that case.

jimmy|10.31.05 @ 12:20PM|#

hope you miers-bashers are happy. well alito must be qualified cuz he went to ivy league schools! oh wait...so did bush 43...and clinton...and bush 41...

|10.31.05 @ 12:22PM|#

Adam,

After reading hundreds of warrant cases dealing with drugs you come to see a pattern. :(

|10.31.05 @ 12:25PM|#

jimmy,

I didn't oppose Meiers and she would have made for an interesting justice.

|10.31.05 @ 12:30PM|#

Adam,

If you have the time, peruse one area of 4th Amendment case law - that concerning garbage searches. Numberous circuit court decisions have affirmed district court decisions that for all manner of garbage searches you wouldn't think were possible - including searches that would have been criminal trespass if the cop had been a regular joe citizen. Finding that the 4th Amendment doesn't apply to someone breaking into your garage to rumage through your garbage convinced me years ago that the 4th Amendment had almost become superfluous.

MP|10.31.05 @ 12:30PM|#

But at the end of the day, I'm less interested in limits on congressional power and more interested in limits on my personal liberty

Hmmm...interesting viewpoint. Although I am also more interested in my personal liberty, I think that SCOTUS can be more effective in restraining goverment in general than restraining the police state. For SCOTUS candidates, I'd err on the side of Commerce Clause originalists.

BTW, I hear that Akhil Amar's new book pulls the rug out from under Commerce Clause originalists. I hope to read it soon.

|10.31.05 @ 12:32PM|#

Adam,

If you have the time, peruse one area of 4th Amendment case law - that concerning garbage searches. Numberous circuit court decisions have affirmed district court decisions that for all manner of garbage searches you wouldn't think were possible - including searches that would have been criminal trespass if the cop had been a regular joe citizen. Finding that the 4th Amendment doesn't apply to someone breaking into your garage to rumage through your garbage convinced me years ago that the 4th Amendment had almost become superfluous.

|10.31.05 @ 12:33PM|#

By "someone" I mean a cop, etc. of course.

|10.31.05 @ 12:37PM|#

"BTW, we'll see how principled Scalia is when it comes to the case concerning Oregon's "Death With Dignity Act." I guarantee you he will vote for the federal government in that case."

If you're speaking of the Commerce Clause, I'm not sure what your point is. That issue was not directly argued before the Supreme Court and is only tangentially related to the actual issue, the interpretation of the Controlled Substances Act.

MP|10.31.05 @ 12:40PM|#

But at the end of the day, I'm less interested in limits on congressional power and more interested in limits on my personal liberty

Hmmm...interesting viewpoint. Although I am also more interested in my personal liberty, I think that SCOTUS can be more effective in restraining goverment in general than restraining the police state. For SCOTUS candidates, I'd err on the side of Commerce Clause originalists.

BTW, I hear that Akhil Amar's new book pulls the rug out from under Commerce Clause originalists. I hope to read it soon.

|10.31.05 @ 12:41PM|#

The cops said the search of the 10 year old was part of a "protective sweep."

No, that was merely a hypothetical argument brought up in the majority opinion. The officers' defense was that the affidavit requesting a warrant claimed that there was probable cause for searching anyone on the premises. The majority (with Alito dissenting) concluded that since the warrant did not reference the affidavit in the "persons to be searched" section -- though it did reference it in the "probable cause" section -- that the affidavit's request was not granted.

Of course, IANAL, and indeed I would lean towards siding against the officers in this case, but it seems like this is a minor, minor quibble compared to the egregious violations of the 4th sanctioned by the courts each and every day. Of course, it does mean that we should look long and hard at his other decisions on this subject.

|10.31.05 @ 12:49PM|#

Matt Tievsky,

Its only through the CC that the Federal Government could enforce such a law.

What I expect of a good justice has little to do with what the parties argued - namely whether the CCA actually applies here based on the language of the statute. You do realize that the S.C. can just deal with the CC issue sua sponte, right?

|10.31.05 @ 2:07PM|#

Hakluyt,

The 4th Amendment became supurfulous when the EPA could come into your business without a warrent under the guise of and "administrative search" and do a hell of a lot more than rumage through your gargage. The federal bureaucrats are a lot bigger threat to your liberty than the police are. You don't hear enough about those kinds of threats to our liberty. Too many of the alleged "libertarians" in the world are just pot heads worried about the pigs finding their stash.

|10.31.05 @ 2:14PM|#

John,

As I recall, EPA agents now can carry guns, and have "Tac Units," right?

|10.31.05 @ 2:23PM|#

John,

Some of us are concerned about both. Crewcuts and FOP/D.A.R.E. stickers are for Republicans.

|10.31.05 @ 3:16PM|#

Actually Hyk,

They do. The EPA and Fish and Wildlife Services both have SWAT teams and have used them. You just don't hear about it because the ACLU is too politically correct to stand up to environmental extremists and movement libertarianism has been taken over by the Burning Man loosers who are doing well to be sentient enough to spell EPA letalone do anything about it. Its a pretty sad situation if you actually care about abuse of government power.

|10.31.05 @ 3:36PM|#

John,

So that Simpsons episode where the EPA agents busted Mr. Burns for stuffing toxic waste barrels into tress was based on reality?

Government butting into private businesses, not good, so I agree with you there. However, if I'm a property owner and the rendering plant down the road decides to dump their excess into the creek running through my back yard, you'd better believe I'm going to sue their negligent cost-cutting asses.

|10.31.05 @ 4:54PM|#

The entire Groody decision is here:

http://www.ca3.uscourts.gov/opinarch/024532p.pdf

This bit is particularly nasty because he would allow a 10 year old girl to be strip-searched even though he shares a "visceral dislike" for it:

In sum, the District Court erred in
denying the defendants' motion for
summary judgment. I share the majority's
visceral dislike of the intrusive search of
John Doe's young daughter, but it is a sad
fact that drug dealers sometimes use
children to carry out their business and to
avoid prosecution. I know of no legal
principle that bars an officer from
searching a child (in a proper manner) if a
warrant has been issued and the warrant is
not illegal on its face. Because the warrant
in this case authorized the searches that are
challenged - and because a reasonable
officer, in any event, certainly could have
thought that the warrant conferred such
authority - I would reverse.

|10.31.05 @ 5:06PM|#

giles,

Omelettes and eggs, my friend, omelettes and eggs. Don't you know there's a war on?

|10.31.05 @ 5:55PM|#

Hak: "What I expect of a good justice has little to do with what the parties argued - namely whether the CCA actually applies here based on the language of the statute. You do realize that the S.C. can just deal with the CC issue sua sponte, right?"

Yes, but that's generally frowned upon and avoided, and rightly so.

Of course, the constitutionality of the Ashcroft Directive, under the Commerce Clause, was settled by Raich, so I'll agree with you that Scalia would uphold on that ground, if asked.

|10.31.05 @ 7:11PM|#

I don't know if you know this, Jacob, but "you want people to own machine guns?" is up there with "But you have sex with kids!" in most people's minds.

|10.31.05 @ 10:31PM|#

joe,

I know you have your finger on the pulse of America and stuff, but there's nothing to compare with "You have sex with kids" in most people's minds. In our pluralistic society, pedophilia has taken over the role filled by witchcraft in less pluralistic times.