A week ago, I criticized law professor Geoffrey Stone for his naked assertion that Alito “has certainly made clear that he has no interest in restraining the acts of this commander-in-chief.” Apparently having received a number of such criticisms, Stone today posted a fuller – or, rather, an equally empty but more wordy – explanation of his assertion. Here’s the hollow heart of it:
Frankly, all one has to do is to read a meaningful sample of Judge Alito’s opinions on the court of appeals to learn both that he is an extremely able craftsman and that he sides almost reflexively with the standard “conservative” position in each case, without regard to whether that calls for judicial passivism or judicial activism.This explanation is laughably deficient. First, as the divide between Justice Scalia and Justice Thomas in the Hamdi case illustrates, it is far from clear that there is a “standard ‘conservative’ position” in many cases involving presidential power. Second, and more importantly, Stone is now conceding that his specific claim that Alito “has certainly made clear that he has no interest in restraining the acts of this commander-in-chief” means nothing more than that Stone regards Alito as a judicial conservative. Third, Stone gives us no hint what “meaningful sample” of Alito’s opinions he supposedly has read. Indeed, his phrasing (“all one has to do is to read”) avoids – artfully? – even claiming that he has read this sample. He does not even cite a single case.
It’s also worth noting that Stone claims not to be attacking Alito’s integrity, but then unambiguously does so: “I am quite confident of my prediction about his votes in executive authority cases, at least as long as George Bush remains president.” (Emphasis added.) Stone does not offer any evidence or argument in support of this outrageous last phrase.
I don’t doubt that Justice Alito may take a more “conservative” view of presidential powers than Stone would like. That observation, of course, begs the question which view is the correct one. I am confident that Alito’s views will be informed by a careful and dispassionate consideration of the Constitution and of the particular question before the Court. I have no such confidence in Stone’s views.
As my law professor friends tell me, liberal legal academics live in an insular world in which they can routinely make politically correct assertions without being called on to back them up with anything resembling evidence. The intellectually corrupting influence of such an environment would seem the best explanation how someone as accomplished and bright as Stone could offer a second post as feeble as his first.