To borrow and adapt a phrase, I know John Roberts; John Roberts is a friend (all right, an acquaintance) of mine. And Sam Alito is no John Roberts.
What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito’s dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We’re talking machine guns.
Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito’s colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce—and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the “Constitution in Exile.”
Whatever it is, it’s not judicial restraint.
Again, it is this ideology – the “Constitution in Exile” – which is the greatest judicial threat to modern American society. Not gay marriage (number of atrocities resulting from gay marriage: 0), not Roe v. Wade or those out to reverse it on narrow grounds.
The Constitution in Exile is a fantasy that some conservative thinkers cooked up, a document which forbids Congress from establishing a minimum wage law, from setting worker safety standards, from regulating commerce that harms endangered species. The Commerce Clause was the tool Congress used to pass the anti-segregation laws in the 1960s. All these things and more would be beyond the power of Congress to regulate. Think that’s bad? It doesn’t end there.
Congress (via the USDA) regulates food safety. Now no one can argue that Congress couldn’t pass laws regulating food that crosses borders. But what about when the food that crossed borders is mixed in with food from within a given state? Current jurisprudence lets Congress take a whack at it.
The Constitution in Exile is less certain.
Consider Alito’s dissent in US v. Rybar. He held that Congress cannot regulate the possession of machine guns (machine guns!) unless its absolutely clear that the gun traveled across state lines before being sold. Congress can’t just say that any market in a commodity influences interstate commerce, it has to jump through all sorts of hoops to establish that machine guns (machine guns!) do in fact have an impact on interstate commerce.
Not surprisingly, he was in the minority on that opinion. The majority ruled that:
Just as the Court in Wickard sustained the regulation of wheat intended wholly for home consumption because it was connected to an overall interstate market which it could depress, and the Court in Perez sustained the regulation of purely intrastate loansharking because in the aggregate such local loansharking substantially affected interstate commerce, so also section 922(o) can be sustained because it targets the possession of machine guns as a demand-side measure to lessen the stimulus that prospective acquisition would have on the commerce in machine guns. It follows, and we hold, that the authority of Congress to enact section 922(o) under the Commerce Clause can be sustained under the third category identified by the Supreme Court: as a regulation of an activity that “substantially affects” commerce.
The majority noted that 5 other circuits had reached identical conclusions (though occasionally through slightly different logic).
(Gun nuts: note that Alito doesn’t even get into the 2nd amendment. Rybar makes that argument, but the law carves out exceptions for state militias, the only entities that the Courts have consistently ruled are protected by the 2nd amendment, even in pre-“Exile” days.)
As Ornstein says (and I hesitate to praise him to wildly, since he’s pretty far to the right on a lot of issues), this is not judicial restraint. Adherents in the Constitution in Exile movement want to revolutionize the government, and not in a good way. Environmental laws, civil rights laws, worker safety laws, drug laws, consumer safety laws, all are in their crosshairs, as are gun laws, clearly. Alito would join with Thomas and Scalia in and Exilist triad.
In Slate, Robert Gordon points out that Alito is more conservative than Scalia on some issues, that he goes to conservative corners Scalia won’t venture into, and that Scalia is prepared to accept liberal (libertarian) positions that Alito wouldn’t accept. In particular,
In 15 years on the bench, Alito has filed more than a dozen dissents in criminal cases or cases involving the Fourth Amendment right to be free from unreasonable search and seizure. Not one of those dissents urges a position more protective of individual rights than the majority.
Indeed, the only case where Alito was more protective of a criminal defendant than his colleagues (where he was alone against a harsher majority on a three judge panel), was his Rybar ruling which wasn’t about individual rights, but an argument about federalism.
I’ll repeat myself and quote Gordon once more:
All of the cases are more complicated than short summaries can capture. In any given case, Alito’s position often seems reasonable; it is the accumulation of consistent results that surprises.
The totality of his rulings, the trends and biases that they display, are what stands out. He fails to recognize discrimination repeatedly. He fails to protect the rights of individuals against societal threats repeatedly. And there seems to be no countervailing pressure, no bold stands on behalf of the people who need a fair justice system, people who are too weak to stand alone.