Wednesday, November 02, 2005

Sam Alito: Stealth Candidate

The title of this entry is a touch ironic, but it is not sarcastic.

In sharp contrast to Harriet Meiers (and even John Roberts), Sam Alito has left in his trail an extensive collection of judicial opinions for court-watchers to peruse. I submit, however, that these tell us very little about how Alito will rule on various issues as a Supreme Court Justice.

Judge Alito's Third Circuit opinions are characterized by an effort to discern and apply Supreme Court precedent faithfully. In Planned Parenthood v. Casey, for example, Alito's dissent focused on applying Justice O'Connor's "undue burden" test to the facts before him -- without commenting on whether he believed the test to be constitutionally apt.

The other opinions that I've read by Judge Alito are marked by the same fidelity to Supreme Court precedent, and the same refusal to pronounce judgment on that precedent's wisdom.

Once he is on the Supreme Court, of course, Justice Alito will be unconstrained by precedent from a superior court. He will not have to follow O'Connor's "undue burden" test in abortion cases, or the Lemmon test in Establishment Clause cases, and so on. He will be free to apply whatever test he thinks is appropriate -- and on such matters he has given no hint in the opinions I've read by him.

Court of Appeals judges tend to decide cases based on their interpretation of controlling Supreme Court precedent. Supreme Court justices tend to decide cases based on their interpretation of the text of the Constitution (or other law) as well as relevant public policy considerations. Extrapolating from one to the other is fraught with uncertainty.

Not all Court of Appeals judges are so coy about their constitutional philosophies, by the way. Edith Jones, for example, has made no secret of her disagreement with Roe v. Wade. Nor has Janice Rogers Brown. But Samuel Alito's judicial opinions have been devoid of gratuitous dicta. Trying to figure out his own view of Roe v. Wade based on his Third Circuit dissent in Casey is little more than guesswork.

We may learn quite a bit about Alito's own constitutional philosophy during his Senate confirmation hearings. Until then, there is little to go on. His opinions from the Third Circuit Court of Appeals are simply not all that probative.


Anonymous Anonymous said...

Maurile - even as a supreme court justice, don't you think he will be somewhat constrained by stare decisis to apply existing standards?

8:11 PM  
Blogger maurile said...

He may defer to existing standards, but he won't be "constrained" by them in the sense I was using that term in my blog post.

As a Court of Appeals judge, when there is Supreme Precedent on a constitutional issue, Alito doesn't get to weigh the Supreme Court precedent against the text of the Constitution or the original intent of the framers or relevant public policy considerations, etc. when making his ruling. The Supreme Court precedent automatically controlls.

As a Supreme Court Justice, he can give all of those considerations (among others) the weight he believes they merit according to his overall judicial philosophy.

So existing standars may factor into his decisions, as will (presumably) the text of the Constitution -- but the relevant importance he accords to each factor will, for the first time, be up to him.

10:03 AM  

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