October 31, 2005


The Roberts/Alito Court: How Samuel Alito would push the Court even further right than William Rehnquist. (Mark Tushnet, 10.31.05 , American Prospect)

Worth emphasizing are two cases in which Judge Alito was more conservative than the Supreme Court’s conservatives. In one, he found that the Constitution precluded Congress from requiring state and local governments to provide family medical leave. The Supreme Court, in a decision written by Chief Justice William Rehnquist, upheld the federal statute. Alito’s defenders are going to say that the case he decided presented a slightly different question from the one presented in Rehnquist’s case. That’s true. But cases are almost always distinguishable, and the tenor of the chief justice’s opinion is quite different from Alito’s holding.

Even more striking, Alito, almost alone among all federal judges, would have held that Congress couldn’t use its power to regulate interstate commerce in a way that would make it a crime for a person to possess a machine gun. He took the Supreme Court’s decisions restricting that power and ran with them past where anyone else had -- or would. Last year’s case involving medical marijuana makes it clear that the Supreme Court doesn’t have nearly as restrictive a view of Congress’ powers -- and, conversely, as expansive a view of the Supreme Court’s powers -- as Judge Alito does. And, in the medical marijuana decision, who wrote an opinion explaining why Congress could prohibit the private possession and use of marijuana? Justice Antonin Scalia.

More conservative than Rehnquist and Scalia, then. A Roberts Court with Samuel Alito would be under consolidated conservative control. What then? If we continue to have unified government under Republican control, not much. The Supreme Court would do some of the jobs that, mostly for reasons of time, Congress can’t get around to. It might invalidate some statutes adopted by state legislatures controlled by Democrats instead of using Congress’ power to preempt those statutes. It might eventually overturn Roe v. Wade, although the political implications of doing so are likely to hurt Republicans (and so a conservative Court might not take that step). Basically, the Roberts Court would collaborate with the Republican political branches to advance the Republicans’ substantive agenda, just as the Warren Court collaborated with the Democratic political branches.

A return to unified Democratic government is so unlikely as not to be worth spending time on. If we get divided government again, the Roberts Court could be free to pursue a strongly conservative substantive agenda, confident that its allies in Congress would have enough power to ensure that the Court’s decisions would stick -- and confident that its opponents would fulminate but not be in a position to mount a full-scale attack on the Court. Or, and I think this is more likely, the Roberts Court would, like the Rehnquist Court, drift gradually to the right, changing constitutional law incrementally while awaiting the return of unified Republican government.

Wait'll Stevens retires.

Posted by Orrin Judd at October 31, 2005 7:29 PM

Justice Ginsberg is in poor health. Look for her seat to open up soon too.

Posted by: Vince at October 31, 2005 8:02 PM

I'm searching and searching for a downside here, but just not finding one.

Also, I wonder if Tushnet has the slighest idea how stupid this kind of statement makes him look:

held that Congress couldn’t use its power to regulate interstate commerce in a way that would make it a crime for a person to possess a machine gun

What next? Is he going to amaze us by telling us that Congress' power to set the currency doesn't also permit them to ban fast-food drive-through windows???

Posted by: Kirk Parker at October 31, 2005 8:02 PM

Be still, my beating heart!

Posted by: Robert Schwartz at October 31, 2005 8:11 PM

"Wait'll Stevens retires"

Must we wait? Will no one rid of us of this. . .

Posted by: obc at October 31, 2005 8:34 PM

It's really fascinating to hear how the Left believes 'conservative' jurists think. Working with the 'allies' and, as noted, striking down do-gooder laws just because they violate the 10th ammendment or some such thing. It's almost like they think John Roberts and Tom Delay have drinks together every Thursday to coordinate making the rich richer and the poor poorer. I suppose that is because it is how they would expect their own side to act and because they view the court as another legislature.

We righties must have paid more attention in 10th grade government class.

If I were the left, I'd do my best to get the scariest possible judges on the court so I could get my base revved up to re-take the legislatures so that they can pass liberal laws that would, by and large, be upheld by the 'extremist' court. Perhaps the fact that the left does not pursue this strategy is evidence they know they're on the 40% side of most arguments.

Posted by: JAB at October 31, 2005 8:40 PM

The article is seriously misleading as the the current state of Supfeme Court Jurisprudence regarding the RKBA. The writer would like you to think that the rule in the medical marijuana case is the same as the one the Court has applied in gun cases---it is not.

Actually the line of USSC cases dealing with Federal gun laws have mostly found insufficient federal nexus under the Commerce clause to support convictions for purely intra-state activities.

This looks like an inconsistency, and a cynic might mark it down to the difference in political weight between gun people and drug people, but there are articulable distinctions between the statutory and regulatory posture of the two situations.

The constitutional law of gun control is not what the left, the MSM (redundancy alert here) and most of the public assume it to be, and the Alito position (which I confess, I have not read--yet) is not out of line with settled law.

Essentially, Commerce clause jurisdiction does not extend beyond actual commerce. Once the gun has been immersed in the state economy, jurisdiction over its possession and use is lost.
Fanciful arguments about indirect effects of guns on interstate commerce have not stood up.

This Alito guy is going to be good. I strongly suspect that Miers was a Carswell-type set-up. If so, Miers was right about who was one one the smartest people around.

Posted by: Lou Gots at October 31, 2005 8:54 PM

Up date on that Alito RKBA-related opinion:

The case is U.S. v. Rybar 103 F.3d 277 (3d Cir., 1996)

The Alito dissent followed U.S. v. Lopez, the U.S. Supreme Court case which threw out the Federal "Gun-Free School Zone" law. The 3d Circuit majority opinion, had simply disregarded Lopez, the the extent of extrensively quoting and adopting the Lopez dissent to construct fanciful scenarios in search of connection to interstate commerce.

For Alito the case turned on the role of the Judiciary in relation to the political branches. His dissent made much of the absence of legislative and executive findings concerning the interstate nexus of intra-state possession and use of firearms.

Posted by: Lou Gots at November 1, 2005 9:59 AM