Sandra Day O'Connor vs. Samuel Alito: Free Speech Edition
New Republic legal affairs editor Jeffrey Rosen spent some time with retired Supreme Court Justice Sandra Day O'Connor last week and produced a short article titled "Why I Miss Sandra Day O'Connor." Don't worry, it's not a trick headline. As National Review's Ramesh Ponnuru quipped, "If your reaction is to think, 'Um, because you're a liberal' you will not be wrong." In a nutshell, Rosen misses O'Connor because she was a judicial moderate and because "her approach looks far better than that of her more conservative and increasingly influential replacement, Justice Alito." Fair enough. Rosen is a liberal and O'Connor was more likely to vote his way than Samuel Alito now is. But surely Justice Alito has done something recently that Rosen might find just a little bit acceptable? For example, what about voting to strike down a state law that restricts free speech? Actually, no. Here's Rosen:
The difference between O'Connor and Alito was obvious during our interviews in big ways and small. O'Connor strongly suggested that, unlike Alito, she would have voted to uphold California's law restricting violent video games. "As a former member of the Court, I'm not going to say, 'Oh my God they made a mistake,' but you don't read the First Amendment and think that's what is required," she told me.
Rosen doesn't criticize this statement of O'Connor's in any way. He just presents it as another example of "how unfortunate it was for the Court and the country that she resigned when she did." Shouldn't a liberal like Rosen prefer Alito in at least this one case?