Alito: Tempering the Optimism

The nomination of Judge Samuel Alito has been met with unbridled enthusiasm in conservative circles. This is understandable in light of the Miers debacle. Clearly, Judge Alito's resume qualifies him for the Supreme Court. If he were on the Court for several of its disastrous decisions, such as Griswold, Roe, and Eisenstadt, he almost certainly would have shown proper restraint. Such are the makings for a good Justice. Sadly, though, those decisions have been made. The Supreme Court has rewritten the Constitution beyond the point of recognition, and many argue that judicial restraint requires judges to adhere to the rulings of the Court regardless of how much those rulings depart from the text of the Constitution and the intent of its framers.

Fortunately, most indications are that Judge Alito will live up to his nickname, Scalito, and depart from precedent where precedent departs from the Constitution. The most promising indication that he would do so comes from his dissent in the Casey case in the Third Circuit. Chief Justice Rehnquist cited Alito in his dissent, in which he, like Alito, voted to uphold Pennsylvania's spousal consent provision. Alito has also shown himself to be a great friend of religious liberty, siding with practitioners of various faiths and arguing that the government could not discrimination against religious practice and viewpoints.

The question then becomes, "What does Judge Alito view as proper behavior for a judicial conservative on the Court, adherence to the Constitution or adherence to precedent?" Alito's track record gives no indication as to the answer. This is not a fault, nor is it evidence that he would side with previous decisions of the Court rather than the Constitution itself. Even so, until conservatives get an answer to that question, we should take a cautious, albeit optimistic, approach to this nomination. I would urge my good friends who have eagerly endorsed this nomination to take a deep breath and think about whether they might be getting a little ahead of themselves.

Judge Alito may well be the best that we can get. For that matter, he might be the best circuit judge in the country. He could well vote with Justice Scalia even more frequently than Justice Thomas. Before marching in lock-step on this nomination, though, we should be careful to make sure that a Justice Alito would be willing to undo the severe damage done to the Constitution by the Supreme Court. I am hopeful, even confident, that he will do so, but conservatives have been burned too many times to get behind this nomination without finding out how he will treat previous decisions that clearly depart from the Constitution.