Bench Memos

Law & the Courts

Mother Jones on Justice Alito

In Mother Jones, Stephanie Mencimer has an essay titled “Conservatives Say They Want Another Antonin Scalia. They Really Want Another Sam Alito.” Well, what I’d really like is about five or six more of either.

Mencimer’s piece is in part a rehash of the distorted attacks leveled against Justice Alito during his confirmation process and in part a tendentious misreading of his opinions and votes on the Court.

Mencimer contends, for example, that the “unitary executive” theory that Alito endorsed as a Justice Department lawyer “argues for near-total deference to the president.” No. The unitary-executive theory argues that Congress may not insulate agencies exercising executive power from presidential control (including, for example, by placing restrictions on the president’s power to dismiss agency heads). The theory does not address the distinct question of whether and when and how much courts are to defer to presidential exercises of power.

Mencimer also asserts that there is some sort of inconsistency between Alito’s positions on executive power in Guantanamo detainee cases during George W. Bush’s presidency and his supposedly “routinely sid[ing] against the [Obama] White House,” including in the two Obamacare cases. She can’t, of course, offer any legal reason why the two sets of very different issues should be decided the same way. Instead, she quotes Norm Ornstein as stating, “It’s just hard to escape the conclusion that there’s a political filter here.”

Well, Mencimer and Ornstein, given that the liberal justices voted one way in the Guantanamo cases and another way in the Obamacare cases, have you likewise, without even an iota of legal analysis, jumped to the conclusion that there is an inconsistency in their positions that must be explained by their political preferences? If not, it would seem that it’s your brains that have the political filter.

Indeed, Mencimer’s broader claim is that Alito’s “rulings on issues from abortion to unions to affirmative action never deviate from the conservative line” and that he is pursuing a “conservative agenda.” But given that Mencimer means to condemn Alito for supposedly imposing his policy preferences—rather than to credit him for consistently applying his jurisprudential principles—it’s telling that she doesn’t impose the same condemnation on liberal justices whose rulings on those and other issues “never deviate from the [liberal] line.”

Mencimer counterposes Alito with Justice Souter, who, she claims, “turned out to be a truly independent jurist.” All she really seems to mean by that claim is that he was a Republican appointee who on so many occasions embraced the Left’s legal positions. Does Mencimer want Democratic appointees to display a similar independence from leftist orthodoxy? Of course not. But what else would you expect from someone who imagines that the Supreme Court has just gone through “a decade of archconservatism”?

Americans ought to demand Supreme Court justices whose readings of the Constitution, and of the laws generally, are independent of the justices’ (presumed) policy preferences, even as there will inevitably be plenty of occasions when the two coincide. But innuendo aside, Mencimer provides no basis for anyone to believe that Alito falls short on this measure. She posits that Alito’s votes in various cases must be deemed to reflect his supposed “empathy” for some parties and his “flat-out insensitiv[ity]” for others. Thus, she asserts that Alito “had more concern about the suffering of abused animals” (in United States v. Stevens) than he did for that of death-row inmates (in Glossip v. Gross). But she seems not to recognize that in both cases, far from having his own policy preferences operate as a constitutional trump, he simply concluded that the challenged law or practice did not violate the Constitution and therefore must be allowed to operate.

For a much better understanding of Justice Alito’s jurisprudence, I’d recommend Adam B. White’s “The Burkean Justice.”

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