IMPEACH SCALIA:

Alito or Scalito?: If you're a liberal, you'd prefer Scalia. (Robert Gordon, Nov. 1, 2005, Slate)

In the great Alito-Scalito debate, everyone makes one mistake: They seem to assume that if Samuel Alito is as conservative as Antonin Scalia, that's about as conservative as a judge can be. Not so. In important ways, Samuel Alito could prove more conservative than Antonin Scalia. And the record suggests he will. [...]

Scalia has actually proved to be less adventuresome than Alito in curtailing congressional power. Alito wrote a dissenting opinion in 1998 arguing that Congress couldn't bar possession of a machine gun, because merely having a machine gun isn't connected closely enough to the thing Congress can constitutionally regulate—interstate commerce. Alito relied on a 1995 Supreme Court case saying Congress couldn't constitutionally regulate the possession of a handgun near a school. Every court of appeals, save one, that reached this question rejected Alito's position. Courts distinguished the 1995 case and concluded, in the words of Dennis Jacobs, a 2nd Circuit judge appointed by George H.W. Bush, that the machine-gun law was "integral to a larger federal scheme for the regulation of trafficking in firearms—an economic activity with strong interstate effects." In other words, if Congress can stop gun trafficking, which is clearly commerce, Congress can also stop people from having machine guns in order to choke off trafficking.

Justice Scalia himself adopted this common-sense logic last year—not in addressing gun possession, but in agreeing with the court's liberals that Congress could stop local production of marijuana as a way to get at interstate drug dealing. Scalia wrote that the "regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intra­state activity does not itself 'substantially affect' inter­state commerce." Following that decision, the Supreme Court vacated the single appellate ruling to agree with Alito's view. If Alito's position on family leave once proved too much for Rehnquist, his position on the Commerce Clause seems likely to prove too much for Scalia.

While Alito goes to conservative places Scalia won't, the more telling point is that Scalia goes to liberal places Alito won't. Scalia has a libertarian streak that can yield surprising results. In a 5-4 decision, Scalia found that the government could not, without a warrant, use a sophisticated thermal imaging device to figure out what you are doing in your home—whether growing marijuana or making whoopee. And Scalia dissented from a decision upholding mandatory drug testing for Customs employees, charging that it is a "kind of immolation of privacy and human dignity in symbolic opposition to drug use." When his libertarianism combines with his (sometime) commitment to "original intent," Scalia offers other surprises: Last year he wrote an eloquent opinion concluding that the president lacked power to detain enemy combatants. Only the court's most liberal member, John Paul Stevens, joined that position; Stephen Breyer, another liberal, provided the key vote for a controlling view friendlier to the president. And unlike other conservative colleagues, Scalia has endorsed sharp limits on the power of judges to lengthen sentences for defendants, the power of prosecutors to use hearsay evidence, and the power of police officers to detain defendants before arraignment.

They all go Washington eventually.

Posted by Orrin Judd at November 2, 2005 1:01 PM