It should be easy to suss out what sort of Supreme Court justice Samuel Alito will be. The man has written hundreds of opinions as an appeals court judge. As the printers whir in senators' offices and newsrooms, he may already be responsible for the death of forests, whatever he eventually rules about national environmental law. The left began sifting through the pile of paper and quickly accused Alito of being a "liberal nightmare,"to the right of Scalia in important areas, and "an out of the mainstream opponent of fundamental legal rights and protections for all Americans."
Maybe so. I've read about a dozen of Alito's opinions carefully so far and scanned a dozen more. And I'm ready to sign on to the proposition that Alito would be to the right of Sandra Day O'Connor, whose seat he's taking. But exactly what kind of conservative is he? Will he push the court dramatically to the right in the most currently contested areas of law? Because of his approach to appellate judging, I feel like I need to read a lot more to know.
Federal appeals judges are middle managers. Their boss is the Supreme Court; their underlings are the federal trial courts and—on questions of federal law—the state courts. Inevitably, they spend a fair amount of time reviewing routine legal claims and plowing through tedious trial records. When they get to wield real authority by deciding a question the Supreme Court hasn't, appellate judges have a choice. They can try to push the law in the direction in which they think the Supreme Court should go. Or, based on their bosses' past decisions, they can try to predict how the case would come out if they were to decide to hear it themselves.
Alito is a predictor. His partial dissent in Planned Parenthood v. Casey—which would have upheld a Pennsylvania law that required wives to tell their husbands if they planned to have an abortion—turned on his reading of which way O'Connor would jump when she faced the question. Alito guessed wrong—but most court-watchers probably did, too, at that time. In 2000, he wrote a cursory opinion ruling that Congress lacked the power to impose the Family Medical Leave Act on state employers. The case seemed easy because at the time few judges thought the Supreme Court would halt its march toward state sovereign immunity for the FMLA. No judge likes to be overturned on appeal; predictors are especially keen on being upheld. Alito's efforts to divine the justices' likely views don't explain away the conservative results he often reaches. But it makes it harder to be sure that he'd reach the same result if he no longer had a boss to answer to.
More telling, perhaps, is Alito's predilection for qualifying his conclusions. Unlike O'Connor, he doesn't frame his opinions so they only apply to a single set of facts. Still, he is a narrow-caster. As the lone dissenter in a 1996 decision in which his court (the 3rd Circuit) set an important standard for the evidence a plaintiff must put on to prove race discrimination, Alito said the majority's rule was "usually" right—just "not always." In a 2001 opinion dismissing a challenge to a town's Christmas display on the ground that the plaintiffs lacked standing to sue, he invited them back "to challenge any future display that plaintiffs believe violates constitutional principles." In United States v. Rybar, Alito parted company with the other two judges on the panel, as well as with most of the other appeals courts, to be a standard-bearer for the Supreme Court's effort to cut back on Congress' power to pass laws based on its powers to regulate commerce between the states. But then he offered Congress two straightforward ways to save the law he wanted to knock down (a statute prohibiting the transfer or possession of a machine gun). "These steps are not too much to demand to protect our system of constitutional federalism," he intoned.
In a thoughtful piecein the New Republic this week (sorry, subscription only), Andrew Siegel argues that Alito's polite, reasonable approach is his biggest weapon. Unlike the flamethrowing Antonin Scalia, he would be a justice "with the skill to craft opinions that make radical results appear inevitable." The nightmare scenario for the left is this: Alito doesn't help overturn the big Warren and Burger Court precedents that are household names—Roe, Brown, Miranda. * Instead, he and Chief Justice John Roberts merrily and cleverly chip away at those precedents, eroding them beyond recognition without provoking a backlash against Republican electoral candidates. Meanwhile, they take a series of small steps to the right in areas of law that remain relatively open. After a decade or two—which they will presumably have—it would become extremely difficult to walk the court back. Rybar is especially troubling in this regard, because it signals that Alito would be game to rein in Congress in ways the Supreme Court hasn't yet attempted—for example, by scuttling the Endangered Species Act so developers can bulldoze the habitats of small furry and scaly animals.
That scenario is entirely plausible. And for liberals deciding how vigorously to oppose Alito, plausible may be enough. Still, I'm going to read more of Alito's opinions. I'll try to be systematic and go through them one area of law at a time. I'll report back when the judge and I have killed some more trees together.