Answer Key

For those who believe in bipartisan judicial restraint, Samuel Alito Jr. poses a dilemma. On the one hand, his vote to strike down a federal ban on machine gun possession in 1996 suggests that he might be a conservative activist who is determined to resurrect limits on congressional authority that have been dormant since the New Deal. On the other hand, many of his other opinions support the judgment of those who know him: that he is a fair-minded conservative incrementalist, closer to Chief Justice John Roberts than to a radical conservative like Justice Clarence Thomas.How can those (like me) who remain unsure about how restrained a Justice Alito would be make up our minds? The question shouldn't be whether he would cast himself as a swing vote in the style of Sandra Day O'Connor, the justice he would replace, since the last thing the country needs is another O'Connor to short-circuit all of our most contested political debates. By splitting every difference, she aggrandized her own power at the expense of Congress and the states. Instead, the relevant question is whether Alito generally believes in judicial deference to Congress, the states, and previous Supreme Court precedents, or whether he has an agenda to turn back the constitutional clock to the pre-New Deal era. That is a question that his hearings can answer; and the very different confirmation performances of Thomas and Roberts provide clues for the Senate about how to distinguish reassuring testimonies from troubling ones. The case that suggests Alito might be a conservative activist (see "How to Judge," November 29, 2004) was his dissent nearly a decade ago from his colleagues' decision to uphold the constitutionality of a federal law prohibiting the possession or transfer of machine guns. Six federal circuit courts had upheld the ban on machine gun possession. Showing an unsettling lack of deference to Congress, the president, and the judgment of other appeals courts, Alito dissented on the grounds that Congress and the president had not produced empirical evidence that there was a substantial connection between gun possession and interstate commerce. Last June, by a six-to-three vote, the Supreme Court implicitly rejected Alito's reasoning. In upholding Congress's power to regulate the local possession of marijuana, the Court emphasized that it had never required Congress to make specific empirical findings in order to legislate and that Congress's power to regulate purely local activities should be upheld as long as a rational person might believe that they affected interstate commerce. Only O'Connor, Thomas, and then-Chief Justice William H. Rehnquist dissented, suggesting that Alito might be among the most high-octane enthusiasts for federalism on the Court. Almost as troubling for those who oppose conservative judicial activism was Alito's 2000 opinion holding that Congress had no power to authorize suits against state employers who violate the sick leave provisions of the Family and Medical Leave Act. Repeating his habit of flyspecking Congress's legislative authority, Alito's majority opinion objected that Congress had the power only to ban intentional sex discrimination and that it had failed to make specific findings that employers who violated sick leave policies might contribute to discrimination against women. Three years later, in another six-to-three decision, the Supreme Court said that Congress did have the power to authorize these suits, on the grounds that Congress had considered "significant evidence of a long and extensive history of sex discrimination with respect to the administration of leave benefits by the States." Although the Court didn't explicitly reject Alito's analysis, his two leading opinions on federalism suggest an unsettling lack of deference to Congress. So the case for Alito as a conservative activist focuses on his cramped view of congressional power. By contrast, his abortion opinions--which have been hyperbolically attacked by liberal interest groups--are impressively nuanced and restrained. In his most controversial opinion, Alito dissented from his colleagues' decision in 1991 to uphold a Pennsylvania law that required women to notify their husbands before seeking an abortion. The following year, reaffirming Roe v. Wade in Planned Parenthood v. Casey, the Supreme Court, by a five-to-four vote, repudiated Alito's analysis. A section of the opinion written by O'Connor rejected Alito's conclusion that the spousal notification law would affect very few women, emphasizing that the small group most likely to be affected was also the one with the best reasons to be afraid of notifying husbands. But Alito, who tried in good faith to apply O'Connor's confusing "undue burden" test, shouldn't be blamed for failing to predict O'Connor's vote; and, in the end, he erred on the side of deferring to the state legislature, which is the most neutral definition of judicial restraint. Three of Alito's other encounters with abortion disputes are similarly scrupulous. He voted without fuss to apply the Supreme Court's 2000 decision striking down bans on partial-birth abortion. In a wrongful death case in 1997, he emphasized that a fetus is not a "person" entitled to constitutional protection under the Fourteenth Amendment-- a pivotal opinion that could have broad implications for future battles over assisted reproductive technologies. Some conservative scholars assert unconvincingly that the Framers of the Fourteenth Amendment meant to protect fetuses; by rejecting that historically implausible claim, Alito signaled his willingness to allow future battles over reproductive technology to be decided in legislatures, where they belong. Finally, ten years ago, Alito cast a decisive vote in a two-to-one opinion, holding that the federal government's limits on the use of public funds for abortions prevented Pennsylvania from adopting even more severe abortion restrictions. Liberals also worry about Alito's apparent lack of concern for unchecked police and executive authority, especially since O'Connor was more willing to second-guess the president and the police. But, if Alito's deference to the police is part of a general tendency to defer to politically accountable officials, it may suggest that his federalism decisions are an anomaly. As Adam Liptak and Jonathan D. Glater of The New York Times noted in a review of Alito's 67 dissenting opinions, "He generally deferred to what he called the good faith judgments of other participants in the justice system, including police officers, prosecutors, prison wardens, trial judges and juries." Nevertheless, privacy advocates haven't given up hope on Alito who, as a Princeton senior in 1971, helped to write an expansive report on the boundaries of privacy in American society that called for congressional regulation of computer surveillance and other high-tech searches as well as the repeal of anti-sodomy laws. Only the Senate can determine whether Alito's youthful concerns about privacy might be resurrected on the high court. The most reassuring evidence that Alito might be a conservative incrementalist comes from those who have worked with him in the past. "Sam is cautious, he is deliberative, he had a judicial temperament even when he wasn't a judge," says Joshua Schwartz, a colleague of mine at George Washington University Law School who worked with Alito in the Solicitor General's Office during the Reagan era. "He was an enormous believer in hearing both sides in every case; he was patient and careful--and reasonably content to decide cases one by one, applying existing precedents rather than writing sweeping critiques of the Supreme Court's jurisprudence." And Schwartz recalls that, when Alito was tapped to supervise cases involving the Reagan administration's efforts to overturn affirmative action, he resisted some of the more extreme arguments advanced by Assistant Attorney General William Bradford Reynolds. Here, then, is the dilemma posed by Judge Alito: His federalism opinions suggest that he might be a conservative activist like Thomas with an agenda to restrict congressional power; many of his other opinions suggest that he might be a cautious incrementalist, as Roberts is likely to be, nudging the law in a more conservative direction rather than rewriting it from the ground up. Given the conflicting evidence, how can senators decide what kind of justice Alito would be? The questions to ask Alito are obvious enough. They're many of the same ones that have been asked in Supreme Court confirmation hearings for nearly two decades, and they involve the nominee's attitudes toward congressional power, previous judicial precedents, and the original understanding of the Constitution. The contrast in the answers given by Thomas and Roberts suggest clues for senators to look for as they try to decode Alito's responses. If Alito is evasive, as Thomas was, about a) how often the Court should strike down federal laws; b) how much weight it should give precedents that have been repeatedly reaffirmed; or c) how rigidly it should follow the original understanding of the Constitution, run for the hills. If he answers those questions precisely and candidly, as Roberts did, breathe a sigh of relief. Thomas's testimony, in particular, reminds us that it's easy for nominees to mislead the Senate in confirmation hearings. But, by pressing nominees to give specific and detailed answers--as Roberts did--the Senate is more likely to get an accurate sense of how those nominees would perform on the Court. (We haven't yet seen many opinions from Roberts, of course, but the precision of his answers makes a surprise less likely.) First, consider federalism. Both Thomas and Roberts were asked whether they thought the Commerce Clause imposed limits on congressional power. Thomas answered in platitudes, telling Senator Arlen Specter, "I don't know whether we know what the limits are." After assuring Specter that "I don't question the current development of the Commerce Clause," Thomas wrote a judicial opinion only four years later declaring that the entire development of the Commerce Clause since the 1930s was legally misguided and should be reversed. Roberts, on the other hand, was much more specific in making clear that he thought the Court should strike down acts of Congress only on rare occasions. He quoted Justice Oliver Wendell Holmes's observation that striking down federal laws is the "gravest and most delicate duty that the Court performs." And he stressed that "the reason is obvious: All judges are acutely aware of the fact that millions and millions of people have voted for you, and not one has voted for any of us." It's not clear whether Alito shares Roberts's concerns about judicial modesty when reviewing acts of Congress; the specific reasons he gives when talking about the importance of judicial restraint should cast light on whether he does. Next, consider a nominee's willingness to overrule precedents. During his confirmation hearings, Thomas refused to say how much deference he would give to previous decisions that he thought were wrong. But he earnestly told Senator Patrick Leahy, "You cannot, simply because you have the votes, begin to change rules, to change a precedent. ... On a personal level as a judge, I, at the end of the day, if I made a decision in a case that way--that willfully--I could not say to myself in the mirror that I have acted consistent with my oath." Contrast these protestations with his record on the Court, where, according to his colleague Justice Antonin Scalia, Thomas will vote to overturn any precedent that he thinks is wrong. Roberts, on the other hand, spoke in specific terms about the weight the Court should give to various factors in deciding whether to overturn an incorrect decision. He told Specter, "If an overruling of a prior precedent is a jolt to the legal system, it is inconsistent with principles of stability." In his own courtesy visit with Specter, Alito declined to embrace the idea that certain decisions that have been accepted by different presidents, Congresses, and courts over time might qualify as a kind of "super-stare decisis" (or super-precedent). But Alito endorsed the idea of a "sliding scale, " according to Specter, and suggested, "The longer a decision was in effect and the more times that it had been reaffirmed by different courts, different justices appointed by different presidents, it had extra-precedential value." By pressing him to give specific examples of precedents that deserve special weight, senators could flesh out whether his stated views about stability are sincere or fig leaves. Finally, there is the question of a nominee's judicial philosophy. During his hearings, Thomas insisted to Senator Joseph Biden that his interest in natural law-based constitutional theories, such as those of Professor Richard Epstein of the University of Chicago, had been "purely in the context of political theory." Only four years later, however, in U.S. v. Lopez, Thomas proceeded to try to write Epstein's theories into law. Moreover--although Thomas emphasized in his hearings that "the important point is, What did the Framers think they were doing? What were their views?"--he stressed that "the world didn't stop with the Framers. ... You then look at the rest of the history and tradition of our country." On the bench, however, Thomas has distinguished himself for insisting that the world did stop with the Framers and any law inconsistent with their original vision should be overturned. Roberts, by contrast, refused to embrace a jurisprudence of original understanding or natural rights. "I do not have an overarching judicial philosophy that I bring to every case," he said, "I tend to look at the cases from the bottom up rather than the top down." As for Alito, his views about constitutional originalism remain opaque. Some of his supporters have insisted that he is a reliable originalist, but his opinions rarely invoke constitutional history in a systematic way. By pressing Alito to give specific examples of when and how he thinks the original understanding of the Constitution should bind judges, and when it shouldn't, senators will have a better idea of whether Alito is a bottom-up judge like Roberts or a top-down judge like Thomas. Trying to make an informed judgment about whether Alito will be a conservative activist, in the model of Thomas or O'Connor, or a principled judge devoted to bipartisan restraint may be one of the harder challenges facing the Senate since the confirmation process went haywire after the defeat of Robert Bork in 1987. But the contrast between the responses of Thomas and Roberts demonstrates that nominees reveal more of themselves under the klieg lights than senators appreciate at the time. If Alito is precise, detailed, and specific about his devotion to restraint, senators can vote their hopes; if he is evasive and abstract, they should vote their fears.