Alighting on Alito

When some rotten insider at the Supreme Court leaked Justice Alito’s draft opinion in the Dobbs case last month, it reminded me of the invitation we had received from the editors of National Review to comment on the nomination of then Judge Alito to the Supreme Court by President Bush. Our article was published in the November 21 issue of the magazine that year. I dug it out and posted it on Power Line last month but thought it might be worth revisiting today in the aftermath of the Court’s release of its Dobbs opinion yesterday. This is what we had to say (below the break).

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When the White House nominated Harriet Miers to the Supreme Court, it appeared to many conservatives that it had drawn the wrong conclusion from the smashing success it had achieved with the nomination of John Roberts. The White House seemed to have concluded that its success was owing to the number of key points on which the Democrats could not fix Judge Roberts — a kind of negative capability (to misuse Keats’s phrase) that he had maintained despite the length and breadth of his distinguished career. Harriet Miers exceeded Judge Roberts in negative capability. Her negative capability, however, was unadorned by any explicit signs of devotion to constitutionalism or conservative principle. In due course the president withdrew her nomination and replaced her with the anti-Miers, Third Circuit Judge Samuel Alito Jr.

Alito’s nomination to the Court marks an epochal moment. Despite the presence of seven Republican appointees on the Court, its usurpation of power from the elected branches and from the states has continued more or less unabated since the 1960s. Richard Nixon’s four appointees barely retarded the Court’s transformation into the most dangerous branch: Lewis Powell, for example, voted with the Roe majority and was the author of the mischievous controlling opinion in the Bakke case that has so damaged the ideal of a colorblind society. Ronald Reagan appointed Anthony Kennedy and Sandra Day O’Connor, who extended the encroachments of the Warren Court.

There is a good explanation for why, until now, Republican appointments have so often been disappointing to conservatives. The revolt against activist liberal judges was populist, and the legal profession was generally hostile to it. In the early years of the conservative revolt, the profession simply didn’t offer much in the way of a talent pool from which originalist jurists, primed to reject government by judiciary and reclaim the Constitution as the charter of limited government, could be drawn.

Thankfully, times have changed and the Federalist Society deserves a great deal of the credit. Founded in 1982, the Federalist Society has been a forceful advocate for the proposition that it is “the province and duty of the judiciary to say what the law is, not what it should be.” The Society has provided a forum for lawyers from all walks of the profession and of all persuasions to debate issues of law and public policy. Among the federal appellate judges who have participated in Federalist Society forums are D.C. Circuit judges A. Raymond Randolph and David Sentelle, Fourth Circuit judge J. Harvie Wilkinson III, Fifth Circuit judge Edith Jones, Seventh Circuit judge Frank Easterbrook, Eighth Circuit judge Pasco Bowman, Ninth Circuit judges Alex Kozinski and Diarmuid O’Scannlain, and, yes, Third Circuit judge Sam Alito.

Over the past 20 years, Republican presidents have populated the lower federal courts with these and many other highly credentialed conservative lawyers. How much they could accomplish in those positions has been limited, however, by the fact that District Court and Court of Appeals judges are bound to follow the precedents laid down by the Supreme Court.

A good example is Alito’s dissent in Planned Parenthood v. Casey, the opinion that has most often been attacked by Alito’s liberal critics. The issue in Casey was the constitutionality of a Pennsylvania statute that placed certain restrictions on abortions, including a requirement that wives, in most cases, notify their husbands before getting an abortion. The Third Circuit majority upheld most aspects of the challenged statute, but held the requirement of spousal notice unconstitutional (a view that was ultimately upheld by the Supreme Court); Judge Alito dissented on that issue.

Abortion opponents may be disappointed by Alito’s technical and dispassionate dissent. The issue on which he differed with his colleagues was whether the notification requirement constituted an “undue burden” on the right to abortion, under the Supreme Court’s jurisprudence as it then existed. The opinion conveys no hint of Alito’s own views on the topic of abortion, or even of his opinion as to how (if at all) the Constitution should bear on the subject of abortion. Rather, and somewhat ironically, his dissent is an effort to follow the twists and turns of Justice O’Connor’s various opinions on “undue burden,” and apply them to the record before him. The most one can fairly say is that Judge Alito’s dissent in Casey does not evince any reflexive hostility to restrictions on abortion, and does reflect the vagaries of Justice O’Connor’s previous (controlling) deliberation over “undue burdens” on the right to abortion. It also reflects what most conservatives regard as an appropriate deference to the legislature’s role as arbiter of public policy.

A circuit-court judge, like a district-court judge, takes Supreme Court jurisprudence as he finds it. His opinion as to whether Supreme Court rulings are right or wrong is entirely immaterial. His duty is to apply the relevant Supreme Court decisions to the case before him, as best he can. This changes once a judge is appointed to the Supreme Court. As a Supreme Court justice, he is entitled to follow his own views on the proper interpretation of the Constitution and of federal statutes. He is not bound to follow the Court’s past rulings as an appeals-court judge is; instead, he is constrained only by the looser concept of stare decisis, the doctrine that an issue, once decided, should ordinarily not be revisited. Stare decisis is a doctrine that, in principle, is approved of by both liberals and conservatives (historically, more so by conservatives).

But everyone agrees there are occasions when the Court should deviate from the usual rule of fidelity to its past decisions. The Court does, and should, overrule itself when it becomes convinced that an important issue has been wrongly decided. Where liberals and conservatives disagree is not on this principle, but on its application; they have different lists of “wrongly decided” cases. During Judge Alito’s confirmation hearing, Democratic senators will ask for his views on stare decisis and try to lead him to pledge fealty to bulwarks of liberal jurisprudence like Roe v. Wade. But the liberals’ enthusiasm for stare decisis is selective. In 2003, the Supreme Court held in Lawrence v. Texas that there is a constitutional right to commit acts of homosexual sodomy. In so ruling, the Court overturned Bowers v. Hardwick, which had held the opposite. And Bowers was not ancient history; it was decided in 1986. If any liberal objected to Lawrence on the ground of stare decisis, we missed it.

The Alito nomination, together with John Roberts’s accession to the post of chief justice, marks a generational changing of the guard. The talented, principled conservatives who began their legal careers in the aftermath of the Warren Court have served their apprenticeships in the executive branch, in private practice, and on the lower federal courts. In those positions, their influence has been real but limited. But now, the moment that rank-and-file conservatives have awaited since the Nixon administration is at hand: A Republican president has a deep roster of talented and highly qualified conservatives on which he can draw in making Supreme Court nominations.

There is every reason to believe that Samuel Alito will prove the kind of Supreme Court justice that Republican presidents have promised, but rarely delivered, since 1969, and that the Court will shift in a more conservative direction as a result.

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