Alito or Scalito?

If you’re a liberal, you’d prefer Scalia.

The most conservative guy in the room

In the great Alito-Scalito debate, everyone makes one mistake: They seem to assume that if Samuel Alito is as conservative as Antonin Scalia, that’s about as conservative as a judge can be. Not so. In important ways, Samuel Alito could prove more conservative than Antonin Scalia. And the record suggests he will.

Yes, Alito shares Justice Antonin Scalia’s ambivalence toward judicial activism. Both men tout their own restraint in deferring to majorities that step on individual rights (including a woman’s decision whether to bear a child). Both men also act aggressively to override majorities that touch states’ rights like sovereign immunity from lawsuits. And neither Scalia nor Alito has really explained how to reconcile the criticism of activism on one front with the embrace of activism on the other.

In 2000, Alito concluded that Congress had improperly allowed workers to sue states for violations of the Family and Medical Leave Act. That conclusion anticipated a dissent by Justice Scalia three years later, when Chief Justice Rehnquist rather shockingly upheld the leave law in Nevada v. Hibbs. Both Alito and Scalia’s views of sovereign immunity trumped their deference to democratic decision-making.

But that is just part of the story. Scalia has actually proved to be less adventuresome than Alito in curtailing congressional power. Alito wrote a dissenting opinion in 1998 arguing that Congress couldn’t bar possession of a machine gun, because merely having a machine gun isn’t connected closely enough to the thing Congress can constitutionally regulate—interstate commerce. Alito relied on a 1995 Supreme Court case saying Congress couldn’t constitutionally regulate the possession of a handgun near a school. Every court of appeals, save one, that reached this question rejected Alito’s position. Courts distinguished the 1995 case and concluded, in the words of Dennis Jacobs, a 2nd Circuit judge appointed by George H.W. Bush, that the machine-gun law was “integral to a larger federal scheme for the regulation of trafficking in firearms—an economic activity with strong interstate effects.” In other words, if Congress can stop gun trafficking, which is clearly commerce, Congress can also stop people from having machine guns in order to choke off trafficking.

Justice Scalia himself adopted this common-sense logic last year—not in addressing gun possession, but in agreeing with the court’s liberals that Congress could stop local production of marijuana as a way to get at interstate drug dealing. Scalia wrote that the “regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intra­state activity does not itself ‘substantially affect’ inter­state commerce.” Following that decision, the Supreme Court vacated the single appellate ruling to agree with Alito’s view. If Alito’s position on family leave once proved too much for Rehnquist, his position on the Commerce Clause seems likely to prove too much for Scalia.

While Alito goes to conservative places Scalia won’t, the more telling point is that Scalia goes to liberal places Alito won’t. Scalia has a libertarian streak that can yield surprising results. In a 5-4 decision, Scalia found that the government could not, without a warrant, use a sophisticated thermal imaging device to figure out what you are doing in your home—whether growing marijuana or making whoopee. And Scalia dissented from a decision upholding mandatory drug testing for Customs employees, charging that it is a “kind of immolation of privacy and human dignity in symbolic opposition to drug use.” When his libertarianism combines with his (sometime) commitment to “original intent,” Scalia offers other surprises: Last year he wrote an eloquent opinion concluding that the president lacked power to detain enemy combatants. Only the court’s most liberal member, John Paul Stevens, joined that position; Stephen Breyer, another liberal, provided the key vote for a controlling view friendlier to the president. And unlike other conservative colleagues, Scalia has endorsed sharp limits on the power of judges to lengthen sentences for defendants, the power of prosecutors to use hearsay evidence, and the power of police officers to detain defendants before arraignment.

The Alito record holds few such surprises. In the Washington Post, Cass Sunstein examined Alito’s dissents and found them “almost uniformly conservative.” That’s nearly true for criminal matters—just forget the “almost.” 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.

A broader survey is even more striking. Consider all those criminal and Fourth Amendment cases in which Alito sat on a three-judge panel and one judge disagreed with the majority. In some, Alito wrote a majority opinion and a colleague dissented; in some, Alito silently joined a majority opinion; and in some Alito dissented. At least in my research, Lexis/Nexis revealed exactly one case in which Alito protected individual rights more vigorously than colleagues. That wasn’t really an individual-rights case at all; it was the states’ rights case in which Alito would have vacated the conviction for owning a machine gun.

So, for example, Alito sat on a dozen panels in which judges disagreed regarding a citizen’s Fourth Amendment rights. In each of those cases, Alito adopted the view most supportive of the government’s position. Alito would have upheld the strip searches of an innocent 10-year-old girl, dissenting from the opinion by the well-known civil libertarian Homeland Security Secretary Michael Chertoff. Alito crossed swords with two Reagan appointees in arguing that a jury shouldn’t decide whether a police officer lawfully allowed his men to push to the ground, handcuff, and hold at gunpoint another innocent family. That case was echoed three years later when Alito, this time writing for a majority, found that in the course of an eviction, marshals could reasonably pump a sawed-off shotgun at a family sitting around its living room.

Of course, caveats apply. 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. Alito has also written or joined unanimous opinions ruling for defendants or citizens pushed around by police. And in en banc reviews where the entire 3rd Circuit sits, and where his vote has not been decisive, he has joined a few decisions not fixed on the right side of the court. None of this changes the basic point: Scalia’s rulings on police power push back against conservative colleagues. Alito’s don’t.

Alito would also look more moderate if he sat on the very conservative 4th or 5th circuits. But recent news reports have vastly overstated the liberalism of the 3rd. In late 1996, the 3rd Circuit’s active judges numbered 10 Republicans and two Democrats, and today the court is evenly divided on partisan lines. Alito regularly finds himself to the right of quite conservative colleagues.

There’s also an interesting question about freedom of speech. Neither Scalia nor Alito is a free-speech absolutist. Both have protected businesses’ right to advertise, but not prisoners’ right to read, for example. In an early battle in the war over political correctness, Scalia struck down a Minneapolis law barring bias-motivated speech; Alito recently echoed that decision in his own ruling against a campus anti-harassment policy. Yet in the only free-speech case many Americans know about, Scalia evoked the right’s fury by casting the fifth vote to strike down a law barring flag burning. There’s no evidence Alito would take on the right the same way.

Alito does appear more sensitive to the claims of religious minorities. Scalia famously rejected the claim of two members of a Native American church that they should be exempted from anti-peyote laws; Alito distinguished that case to rule in favor of Muslim police officers who felt religiously obligated to wear their beards. And Alito seems to be on the better side of that argument. But today, when leaders of the religious right have made so much of their own victimization, his position is hardly a mark of ideological heterodoxy. These conservatives celebrate Judge Michael McConnell for his critique of Scalia’s view.

If you are the sort of person who believes conservatives are always right, Alito’s consistency in many matters will cheer you. Maybe it will even send you into the same earthly rapture that America’s right has experienced since Monday morning. But if you are the sort of person who believes that conservatives and liberals both tell some of the truth and neither tells all of it, you may prefer the sort of conservative judge who ventures out of camp more often. Most Americans probably feel that way, which is why most Americans probably should think carefully about Samuel Alito’s confirmation.

When Antonin Scalia starts looking good, you know you’re in trouble.