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Decoding Jeffrey Rosen


Rosen thinks that the left has been too critical of Judge Alito on parental-consent (his Casey dissent): He “tried in good faith to apply O’Connor’s confusing ‘undue burden’ test [and] shouldn’t be blamed for failing to predict O’Connor’s vote.” I agree entirely. But Rosen is concerned about “his dissent nearly a decade ago from his colleagues’ decision to uphold the constitutionality of a federal law prohibiting the possession or transfer of machine guns” (Rybar) and his “2000 opinion holding that Congress had no power to authorize suits against state employers who violate the sick leave provisions of the Family and Medical Leave Act.” But can’t these two decisions be defended on exactly the same ground that Rosen defends his Casey dissent?

Rosen doesn’t mention that in both cases Alito was applying Supreme Court precedents that, at the very least, certainly seemed to lend support for the rulings he made. The Supreme Court (including O’Connor) had struck down the Gun-Free Schools Act as beyond Congress’s power to regulate interstate commerce, which certainly seemed to suggest that the machine-gun ban did, too. It had expanded the states’ sovereign immunity from lawsuits, too. Rosen hated the gun-free ruling, as he reminds us in this article. But whether these rulings were right or not has little bearing on whether Alito was bound by them.

The Court later narrowed or gutted its holdings in these areas, with Justice O’Connor, surprise surprise, being one of those who decided that she wasn’t actually serious about reviving limits on the commerce clause or expanding sovereign immunity. Rosen uses these later rulings to criticize Alito. But, again, why should Alito be faulted for failing to predict where O’Connor’s whims would take her? He was bound by the Court’s past decisions, not by its future ones.


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