The Corner


Last November Jeff Rosen did a short survey of the potential Bush Supreme Court picks. He divided the contenders between “principled conservatives” and “conservative activists.” Rosen listed Scalito in the activist camp. Here’s his write up:

Samuel Alito Jr., 54. U.S. Court of Appeals for the Third Circuit. Known as “Scalito,” or little Scalia, he is considered less blustering than the big guy, but liberals will undoubtedly balk at his abortion record. In 1991, he dissented from a decision to strike down Pennsylvania’s spousal notification provision–a decision the Supreme Court later upheld in Planned Parenthood v. Casey, the decision that reaffirmed Roe v. Wade. What should be far more troubling to Senate Democrats, however, is Alito’s 1996 dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns. Applying the logic of the Constitution in Exile for all it’s worth, Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce–therefore, Congress has no right to regulate it. Alito’s colleagues criticized him for requiring “Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute.” His lack of deference to Congress is unsettling.

For what it’s worth, I like Rosen and think he’s a very sharp guy, but I sometimes think he has a very odd view of the court. I keep hearing him say that one of the great things about the court is that it is representative of the public’s desires (or has been during the O’Connor era). He’s even writing a book on the subject titled, “The Most Democratic Branch: How Our Courts Serve America.” I for one don’t understand why we should care whether the Court is represenative and I know we don’t want it to be democratic.

His argument in favor of Miers seemed fairly corrupted by this bias. He wrote that there were only two possibilities for a Miers seat on the Court. Either she would prove to be “a pragmatic centrist or a clerk-driven mediocrity.” In effect, the way Rosen set it up, if Miers turned out to be conservative, that alone would serve as proof she was a hack. If she ruled like O’Connor, on the other hand, she’d prove to be a legal statesman.

Regardless, Rosen is widely respected and you can be sure his description of Alito will reflect a major theme of the liberal assault.

Jonah Goldberg, a senior editor of National Review and the author of Suicide of the West, holds the Asness Chair in Applied Liberty at the American Enterprise Institute.

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