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Alito and Predicting The Future

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Publius has a typically thoughtful response to my post about Alito and Hibbs. I also think he’s basically right, so it’s worth clarifying my argument.

The intent of my lengthy argument about the “sovereign immunity” doctrine was largely to counteract the claims that conservative jurists are “strict constructionists” or consistently believe in “judicial restraint” or some such. But Publius is certainly right, as far as it goes, that the “blame” for this jurisprudence lies with the Supreme Court. Again, my argument about Alito is that I strongly disagree with him philosophically, not that he’s incompetent or actively nullifies upper court precedents. His application of existing precedent in Hibbs was not unreasonable; that’s absolutely correct. For someone like Ann Althouse, for whom professional competence is essentially the only criterion the Senate can legitimately apply, this ends the story. She’s entitled to apply that standard. But I disagree–I believe that Senators can, and should, also consider a nominee’s judicial philosophy (after all, the President does), and so the fact that Alito is an able jurist is the beginning, not the end, of the discussion. Opinions like Chittister (or his Casey dissent) do provide useful predictive information. Binding precedents usually leave some discretion for lower court judges. Alito’s broad interpretation of the “undue burden” statute was not lawless; it makes perfect sense from his perspective to go as far as precedent will allow. But the fact that he read the standard significantly more broadly that the woman who wrote it provides valuable information about how he’s likely to rule when he’s no longer bound by upper court precedent.

And so the important question about Chittister is this: how would a justice who believed that the Seminole Tribe line of cases was incorrectly decided rule? Did the precedents leave enough room to plausibly make FMLA rights enforceable against the states? And the answer, of course, is “yes.” The standard established by Garrett and Kimmell–that Congress could abrogate sovereign immunity if the legislation was “congruent and proportional” to a constitutional violation–permitted significant discretion, and the fact that FMLA involved the heightened scrutiny of gender discrimination gave Congress’ argument more weight. This is the significance of the fact that the author of Seminole Tribe ultimately disagreed with Alito and thought that Congress had met the standard–not that Alito was somehow acting lawlessly, but that if he was skeptical of that line of cases, he could have written a perfectly reasonable decision upholding Congress’ abrogation of sovereign immunity. The fact that he didn’t provides evidence–not dispositive evidence, but good evidence–that he thinks the “sovereign immunity” cases were correct.

And, of course, this is the most logical inference anyway. We know from his opinion in Rybar that he’s an aggressive proponent of the “new federalism.” (“Was United States v. Lopez,” he asked wistfully in the dissent, “a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?”) He argued in this case that a federal law that prohibited possession of a machine gun exceeded Congress’ power under the Commerce Clause. Again, my point is not that this was a completely absurd application of Lopez, but the opinion–a solo dissent, whose reasoning was also rejected by other appellate courts (and the Supreme Court refused to grant cert to review as well)–certainly cannot be said to compelled by it. Now, it is true that his desire to take commerce clause restrictions further than the Supreme Court has so far does not, in theory, mean that he will support the “sovereign immunity” cases; as I said, in my opinion the constitutional basis for the former line of cases is far stronger. But in the real world, the overlap between people who support Lopez and Seminole Tribe is extremely high. Despite the philosophical and ideological differences between the Court’s five most conservative members, the same 5 constituted the majority in Lopez, Morrison, Seminole Tribe, and Garrett. And while Judge Noonan is an example of a conservative who opposes the sovereign immunity cases, he’s equally hostile to the commerce clause cases. Most people, both supporters and opponents, see this collection of cases as a package. Looking at the evidence, then, it’s entirely logical to assume that he supports the sovereign immunity jurisprudence of the Rehnquist Court. Comparing his Casey dissent and his Chittister opinion suggests that he’s considerably more sympathetic to “states’ rights” than privacy rights–a conclusion that is not exactly earth-shattering. (As Kos quite rightly points out, one of the amusing sidelights of the Alito nomination–as reflected in Mehlman’s talking points–is seeing people who purportedly revere Thomas and Scalia scream bloody murder if anyone suggests that Alito shares core aspects of their jurisprudence. If you guys don’t think he’ll overturn Roe or interpret the Establishment Clause more narrowly or support the “new federalism,” why the hell do you support him? If you’re willing to put up someone who openly supports liberal positions on these things, we can skip the whole controversy.)

So, in other words, it is perfectly reasonable to infer that Alito supports the Court’s “sovereign immunity” jurisprudence; the evidence, while necessarily incomplete, is strong. Unless he repudiates the decisions at his hearings or other evidence emerges, it’s fair to evaluate his nomination with this assumption.

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