Althouse on Alito

Ann Althouse althouse at wisc.edu
Tue Nov 1 05:14:46 PST 2005


I'm mostly just arguing against the mental shortcuts embodied in the  
Scalito concept. We've got a 15 year record that deserves respect and  
reading. To pigeonhole a man like this offends me. What I most want  
is to see strong judicial minds on the Court, not mediocrities. I  
hate to see the political process work out to put bland, weak persons  
on the Court. I want strong liberals as well, by the way. I miss the  
passionate liberals of yore.

Ann

On Nov 1, 2005, at 6:36 AM, Mark Tushnet wrote:

> I found interesting the tension between Professor Althouse's
> argument and the proposition that inferences from an appellate
> judge's opinions should be drawn with caution because such a
> judge is "merely" following the law given him or her by the
> Supreme Court.  By naming the dissenters in Smith to comfort
> liberals, Professor Althouse seems to be hinting that Judge Alito
> was refusiing to follow the actual holding in Smith.  And, of
> course, if he was following the actual holding, then there's no
> particularly strong reason to think that he's more like the
> dissenters in Smith than Justice Scalia.  (As I recall, one early
> posting on FOP on, I think, the religionlaw list -- I don't think it
> mentioned the other case -- argued that there was no reason to
> believe that Justice Scalia would have ruled differently on the
> issue presented in FOP.)
>
> With respect to the free exercise cases, for myself they seem to
> me to show that Judge Alito is an ally of religious conservatives
> on a doctrinal issue of concern to them, and is -- as an honest
> judge -- accepts the consequences of the ensuing doctrine for
> religious believers other than religious conservatives.  The free
> exercise clause is one of the constitutional favorites of religious
> conservatives because it provides them a defense against
> regulations emerging from what they regard as a secular society;
> they see themselves (sometimes) as a beleagured minority
> needing active support from an activist judiciary against an
> insensitive majority (no deference to majority will here).  But, as
> Judge Alito's establishment clause opinions suggest, they also
> favor a narrow interpretation of the establishment clause so that,
> on those (infrequent, as they see them) occasions when they
> manage to control or influence school boards and city counsels,
> the policies those bodies adopt can be implemented (deference
> to majorities matters a lot here).  The combination of positions is
> of course intellectually coherent, but I don't think there's a good
> reason to ignore its policy valence.
>
> The White House talking points on Judge Alito display a similar
> tension in connection with the machine gun case, where, they
> say, he was "merely" applying Lopez (without noting that at most
> a handful of other lower court judges read Lopez to compel
> invalidation of the machine gun ban, or that in Raich the
> Supreme Court, and Justice Scalia, seem pretty clearly to have
> developed an analytic framework explaining why the machine
> gun ban is within Congress's power).
>
> Finally, I find it interesting that Professor Althouse seems to
> want to argue that Judge Alito is not a judge more like Scalia
> and Thomas mold than any other current member of the Court,
> rather than arguing that, by gosh, he sure is more like them,
> thank goodness.
>
> ----- Original Message -----
> From: isomin at gmu.edu
> Date: Tuesday, November 1, 2005 2:58 am
> Subject: Althouse on Alito
>
>
>> List members may be interested in this column on Alito by
>>
> Anne
>
>> Althouse:
>> http://www.nytimes.com/2005/11/01/opinion/01althouse.html
>>
>> It expands on Alito's Free Exercise decisions in a way
>>
> congruent
>
>> with some of the points I have made in my posts to this list.
>>
> While
>
>> Alito's decisions in this area don't attack Smith directly (they
>> can't because he's a lower court judge), they do cut against
>>
> The
>
>> spirit of Smith, which is quite clearly oriented towards refusing
>> free exercise exemptions except in cases where the religion is
>> deliberately targeted for disfavored treatment.
>>
>>
>> Ilya Somin
>> Assistant Professor of Law
>> George Mason University School of Law
>> 3301 Fairfax Dr.
>> Arlington, VA 22201
>> ph: 703-993-8069
>> fax: 703-993-8202
>> e-mail: isomin at gmu.edu
>> Website: http://mason.gmu.edu/~isomin/
>> _______________________________________________
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>> <tushnet.vcf>
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