What the Alito Nomination Means for Constitutional Law
Cross posted at Balkinization
What effects will an Alito appointment have on Supreme Court doctrine? Fairly significant changes, particularly in the areas that social conservatives most care about.
Assume for the moment that Alito is confirmed by Christmas. The Supreme Court will probably hold over the New Hampshire abortion case, Ayotte, for reargument, if, as expected, the Justices vote 4-4 (excluding Justice O'Connor's vote, which will not count if she retires in December). On the other hand, if Justice Kennedy joins the liberals in Ayotte, Justice O'Connor's vote will not matter and the case will be decided 5-3.
What happens in Ayotte may be a harbinger of things to come. If successful, Alito's nomination will make Anthony Kennedy the median or swing Justice on the U.S. Supreme Court. In the past, Sandra Day O'Connor had held that powerful position, only occasionally displaced by Kennedy. Now it is largely Kennedy's, with occasional displacements by Breyer.
Put another way, to understand what Alito's appointment means for constitutional doctrine, instead of focusing on Alito's views (which one assumes are reliably conservative), one needs to focus on Kennedy's. We know that the new median Justice supports abortion rights claims a little less than O'Connor (Kennedy voted to uphold restrictions on partial birth abortion), supports gay rights claims a bit more than O'Connor (Kennedy wrote the opinion in Lawrence), thinks affirmative action is largely unconstitutional (Kennedy dissented in Grutter), thinks most campaign finance regulation is unconstitutional (Kennedy dissented (in part) in McConnell) and has been more likely to permit government endorsements of religion and state financial support of religion than O'Connor (Kennedy dissented in Mccreary County v. ACLU and joined Mitchell v. Helms). On federalism, it's a mixed bag: Kennedy joined Raich v. Ashcroft but dissented in the two most recent section five cases, Tennesee v. Lane and Hibbs. On Presidential power, the position of the new median justice, interestingly enough, appears to be unchanged. Although Rehnquist and O'Connor and Rehnquist are gone, the Administration would still have lost Hamdi, because its position was opposed by Kennedy, Scalia, Stevens, Breyer, Souter, and Ginsburg.
Thus, Alito (together with Chief Justice Roberts) will cause some pretty significant shifts in Supreme Court doctrine, most notably in areas of religion, abortion, affirmative action, and campaign finance, but not yet in the area of gay rights. Changes in doctrines of federalism and presidential power are a bit less clear. These shifts will come in most of the places that movement conservatives are looking for changes in constitutional doctrine, which is why they will be delighted by an Alito appointment. The greatest irony, perhaps, is that although many movement conservatives now loathe Anthony Kennedy, all the changes in doctrine I've outlined will occur because Kennedy now holds the swing vote.
Finally, if Justice Stevens were to retire in the next few years, and be replaced by a staunch conservative, we would have a full scale constitutional revolution on our hands. For then the median Justices would be none other than John Roberts and Samuel Alito.
One thing that I wonder about is the possibility that these people shift their own positions based on the composition of the court itself. That is, O'Connor might have been more conservative had their been more "liberals" on the court, to act as a balance, and perhaps Kennedy will slide somewhat to the left now that he's the balance. It makes sense in a way that the court would, in relatively stable times, want to make slow changes instead of "revolutionary" ones. Has anyone written about this sort of thing that you're aware of?
November 1, 2005 3:41 AM | Reply | Permalink
This seems to be the point at which the Progressive side of the ledger should be out in FORCE pointing out to all those people that made their states run Red in the last two elections that THIS is what you get when you vote against your own self interests. The ways that decisions of the Supreme Court effect us ALL in our daily lives need to be put in front of these people NOW! No more Medical Leave Act? Don't let anybody in your family get long term sick or injured...let 'em search and seize without any good reason? Don't be in the wrong place at the wrong time, folks! Wanna talk abortion for your teenage daughter? Don't even go there, you'll get to bring up the little Nipper on your poverty-level wages from those two jobs you work. This is what happens when you listen to the Happy Talk of Conservatives during election cycles. At least them damn gays can't get hitched, right! Wake UP people! Texas? Florida? Ohio? Are you listening? Start paying attention! Start getting ready for the '06 elections NOW! NOW is the time to get this message out there, while it's getting rubbed in our faces by this cabal in Washington. Where is the DLC? The DNCC? Where ARE these people?? Seize this moment, it is the most poignant you are gonna get...
November 1, 2005 5:38 AM | Reply | Permalink
Jack, I like the way you analyze this and I think it points to a way Democrats could argue against the nomination of yet another ideological conservative.
The court consists of nine judges. Ideally, these nine should represent a wide spectrum of legal opinion in the US. The strongest court might consist of three ideological "conservatives," three "liberals," and three non-ideological, pragmatic centrists. Such a court would examine every issue from multiple perspectives, ensuring that the final decision reflects the best consensus of legal opinion, taking into account all the mainstream ways of thinking about the law.
Currently, we have a strong conservative wing in the court, with Scalia, Thomas, and Roberts. This is good for the country. Their voices need to be represented. But if we appoint yet another conservative, the balance of the court will be skewed and other important opinions will be silenced. This ultimately is bad for the country. Let's keep the court it's strongest and most balanced by appointing someone more moderate. Someone more in the mode of Justice O'Connor. Alito may be a highly qualified conservative, but right now the court needs a different type. Let's look at the court wholistically and select not just a great individual justice, but a justice who makes the whole court great.
November 1, 2005 6:16 AM | Reply | Permalink
The Alito nomination is meant to achieve one of two things. Either he gets in and the right stops bashing Bush in return or he provokes a filibuster.
If he is filibustered then the Senate can sustain it or use this as a chance to kill the filibuster rule on judges as they wanted to do previously.
So why don't the Dems just line up and say,
"We were not consulted before the name was announced as had been agreed upon by Bush, so we are not going to allow his confirmation. Let's skip a month of useless posturing and cut to the chase right now."
If Bush loses this second nomination he then has cover to say to the right, "I tried twice, I need to submit someone more moderate."
Why drag out the political charade. It is only being done to distract from the Plame affair and the Iraq war. Why play into the scheme?
November 1, 2005 6:22 AM | Reply | Permalink
Changes in doctrines of federalism and presidential power are a bit less clear.
I'm curious how much further the right intends to go in the federalism area. They have already pushed sovereign immunity, the complete marginalization of the IXth Amendment in favor of the Xth Amendment, and limiting access to federal courts.
What are the other things on the right-wing federalism wish list?
November 1, 2005 7:51 AM | Reply | Permalink
Please please please can we stop using the word "conservative" when we really mean "right-wing radical" ? Alito wants to change the law in radical ways: he wants to gut anti-discrimination laws, roll back the use of the Commerce clause to the 1920s, and generally cause havoc. Republicans are just delighted to have these positions described as "conservative". Democrats should point out that there's nothing "conservative" about destroying 80 years of progress.
On another framing issue, surely the point Democrats should make about abortion is Clinton's "safe, legal, and rare". Neither party wants more abortions: Democrats want to reduce abortion by putting more people into a healthy economic position so that they can raise kids - Republicans want to keep you poor but force you to have kids and raise them in poverty and insecurity. A comparison of abortion rates through the Clinton and Bush terms should make the point.
November 1, 2005 8:02 AM | Reply | Permalink
This comment demonstrates precisely why there is such high drama, and such a need for careful tactics; because "the Democrats" don't ever line up and say X together. Thats not a criticism, but it is a clear reflection of the reality of our conference.
When Reid said yesterday he woudln't twist arms on this one, he was signalling that there are significant differences of opinion on how to approach this, and by tring to line everyone up on a single position would be foolhardy and only weaken the leader.
And put Reid in a position of having to call for a filibuster that he could not sustain.
(This, I think, is why Frist keeps falling flat on his face; he believes, told by the WH, that his conference should be the House GOP caucus and walk and talk in lock-step. Senators simply don't do that.)
So my point is that our best bet is to get into an open, free-form debate, be nimble and alert in getting points out about what Assoc Justice Alito would mean -- an end to privacy rights, an end to personal freedom from police harassment, an end to the federal constitution as a guarantor of equality and personal liberty, free reign for corporations and developers to ride herd over workers, consumers and communities.
The more different positions that are taken in the Senate, the more likely that one of the really important consituencies here (Specter, Bush-state Dems, G14 republicans) may end up in the same position.
November 1, 2005 8:33 AM | Reply | Permalink
Do you agree that Alito would cause a further swing in favor of business over individuals? It seems to me that most of what Bush actually accomplishes (as opposed to what he says in his speeches) is favorable to big business. He talks alot about life, so-called family values and religion but seems to do very little of substance in those areas. Where is his constitutional amendment on gay marriage? But when it comes to tax cuts and subsidies for business, that stuff goes right through and into law.
November 1, 2005 12:17 PM | Reply | Permalink
Changes in doctrines of federalism and presidential power are a bit less clear.
I've gotten way too cynical for my own comfort (and possibly for my own good), but living in bushworld'll do that to you. So, in my cynical but ever-so-humble and non-lawyerly opinion, the so-called "conservative" justices don't givash*t about "federalism" OR "states' sovereign immunity" per se. They just use that to strike down federal laws they don't like. If it's a state law they don't like, they're perfectly happy to throw federalism and "state sovereign immunity" out the window. Their only goal is to ensure one of two things:
1) the government powers that are upheld are the ones that either
2) the government powers that are struck down are the ones that
If it's a federal law that does either of those things, fine. If it's a state law that does either of those things, that's fine too. Both "federalism" and "state sovereign immunity" are smokescreens for opinions that achieve either of those results.
November 1, 2005 1:00 PM | Reply | Permalink
Karen . . . I posted this a while back, but I think it's relevant here too based on your comment:
Here are the three great red-herrings of constitutional law, used throughout American history by both liberals and conservatives to justify their opposition to, or their support of, specific legal decisions. Whenever anyone appeals to one of these red-herrings as justification for their legal opinions, simply smile and nod till the storm of BS subsides:
1. States rights versus federal power: Everyone is for federal power when they like what the federal government is doing, against it (and pro states rights) when they don't.
2. Judicial "activism" versus deference to state or federal legislatures: Everyone is against judicial activism when they dislike the courts' opinions, for it when they like those opinions.
3. Strict constructionism/originalism vs more open interpretation: Everyone is for strict constructionism/originalism when they like what the constitution says (or doesn't say), against it when they don't.
November 1, 2005 2:24 PM | Reply | Permalink
The Dems will make a half-hearted stink over abortion limits, affirmative action, privacy and states rights. The corporate press will make those issues the only ones, and who can blame them with an opposition party like that? Yet again the 'liberal' side avoids the takeover and destruction of our democracy by money and corporate power.
But this is a nominee for the US Supreme Court, the gatekeeper that has enabled the complete corruption of the political system by the propertied classes and the giant globalized corporations, and the near destruction of unions and their threat of worker power within the corporate and political worlds. The results are life and death: the worst distribution of income and the worst poverty among the industrialized nations, and an insanely destructive and wasteful military-industrial complex.
I hope against hope that the Dems will make it matter that Alito is very weak on 'the stepped on majority' issues like the family leave act and the right not to get your pension stolen from you. Look over at the TPM Cafe labor blog to learn more.
November 1, 2005 2:34 PM | Reply | Permalink
Oh! So it's NOT just me being too cynical? Whew. I was beginning to worry about myself. And I take your point that liberals have been known to stretch to justify deciding a case the way they wanted to.
I actually expect any judge to do it, I'm just... I don't know, upset, maybe, that nobody points this out when these so-called "conservative" Justices prattle on and on and on about "judicial philosphies" that they abandon in a heartbeat when it suits them. That expectation is also why I think balance on the court is so important, and why I think Alito would unbalance it.
Of course, I think the court is already somewhat tilted to the right, based on my own highly unscientific data - I have disliked far more rulings than I have liked in the past several years. I don't actually think O'Connor was all that moderate, but, on the few recent decisions I have liked, she was generally on the side of the "angels" (IMHighlySubjectiveO).
Based on what I've read so far, (including Nathan Newman's post earlier and this analysis in the WaPo) Alito won't be on the side of my preferred angels. Therefore it seems to me that if he is confirmed, ALL Supreme Court rulings will lean toward achieving the "conservative-preferred" results I mentioned in my post. IOW, unbalanced.
November 1, 2005 3:11 PM | Reply | Permalink
Oh! So it's NOT just me being too cynical?
No, you're just being perceptive. The first two of these three red-herrings go back to Jefferson and Adams. Jefferson (who'd probably be a liberal democrat today) was angry at the decisions of the court, which had been stacked by his predecessor (Adams, who'd probably be a republican today). So Jefferson was a huge advocate of states rights and deference to the legislature. Since that initial fight, the pendulum has swung back and forth, depending on the make up of the court and whose side is best represented on the court.
The third red-herring (intent/textualism) isn't as old as Jefferson and Adams--probably because the founders were still alive then. Funny, though, even the founders couldn't agree on what their document meant--which demonstrates just how silly the textualism/original intent argument is (at least when taken too far). The constitution--like everything produced by a committee--is a compromise, vague at points, and probably meaning slightly different things to everyone involved in creating it. Just like legislators today, the founders were a diverse and partisan group. They had different opinions and they settled on something that all could vote for, but never meant just one thing to all or was completely satisfactory to all . . .
Also--I think it is important for justices to stick to the letter of the law, but only while recognizing that the letter of the law can be ambiguous and sometimes even self-contradictory. The ninth amendment, for instance, clearly states that there are rights beyond those mentioned in the constitution--so a court can decide that the enumerated rights are the only valid rights only if it ignores the text of the ninth amendment. Is this really strict constructionism? I'd say no--the text of the constitution itself seems to demand that the court go beyond the text of the constitution when it comes to individual liberty. And the founders intent on this was pretty clear . . . they didn't want the enumeration of some rights to imply that others didn't exist. The rights of man (that was the term they used back then) were too numerous to list . . .
November 1, 2005 4:47 PM | Reply | Permalink
I agree that the name "conservative" doesn't really cover the ideology currently being adhered to by the right wing, but linking conservatism to unpopular ideas could be a type of branding that may be effective in making conservatism seem a bad thing. The word "liberal" has all sorts of unfortunate implications for many in the middle of the political spectrum (to say nothing of what the right thinks of the word). The demonization of liberals had little to do with what liberals actually thought, but arose from years and years of the right attaching unfortunate policy proposals to liberals. Ultimately, if we were honest, we'd refer to the Republicans as reactionaries due to the fact that they are proposing a roll back of governments role to what it was 90-plus years ago.
November 2, 2005 5:37 AM | Reply | Permalink