Alito, libertarianism, and conservatism

Mark Tushnet tushnet at
Tue Nov 1 06:32:32 PST 2005

I think I may have mentioned this before, but in my judgment the 
best piece laying out the analytic structure for addressing David 
Bernstein's question is by Wojciech Sadurski, in the Oxford 
Journal of Legal Studies in 2000 or 2001.  He takes David's initial 
question -- you personally have a criterion for what good 
outcomes are -- and lays out what you have to think about when 
you're trying to assess an institution (a court) that addresses not 
only the issue you care most about, but also issues you care 
about, but less deeply.  My students have usually found the article 
quite useful and accessible.

----- Original Message -----
From: Samuel Bagenstos <srbagenstos at>
Date: Tuesday, November 1, 2005 9:22 am
Subject: Re: Alito, libertarianism, and conservatism

> A super-interesting question, one that probably turns a lot on 
> you define "civil liberties."
> ====================================
> Samuel R. Bagenstos
> Professor of Law
> Washington University School of Law
> One Brookings Drive
> St. Louis, MO  63130
> 314-935-9097
> Personal Web Page:  
index.htmlDisability Law Blog:
> >>> <DavidEBernstein at> 11/1/2005 7:53 AM >>>
> Here's an interesting question: If your primary criteria for a 
> Justice was to 
> protect civil liberties, holding all other constitutional views 
> equal, would 
> you rather have (a) a Justice with William Brennan's view of the 
> Fourth 
> Amendment; or (b) a Justice with Clarence Thomas's view of 
> Commerce Clause.  I'd 
> opt for "b".  
> In a message dated 11/1/2005 8:08:17 AM Eastern Standard 
> srbagenstos at writes:
> I guess the question is how consistent his libertarianism is.  So 
> far, what 
> we see is that Judge Alito favors the liberty to own machineguns 
> and to engage 
> in discriminatory harassment.  I don't know how much you can 
> from the FOP 
> case, and the immigration case would be more telling if it implied 
> a 
> criticism of a country that wasn't in the "Axis of Evil."  And we 
> know that Judge 
> Alito hasn't taken such a libertarian position with respect to 
> abortion or 
> strip-searches of children.
> As to federalism, I think there are lots of liberal results -- as 
> well as 
> lots of conservative results -- that would be served by stronger 
> deference to 
> states.  But of course the "federalist" court has not been at all 
> consistent in 
> this.  I don't mean Raich, but preemption.  To say that liberals 
> should swallow 
> Morrison or Garrett because federalism gets them the ability to 
> shield 
> liberal state policies from federal interference would be more 
> persuasive if 
> liberals actually got both sides of the bargain.  Even then, I 
> think federalism 
> questions are more nuanced than the "are you for federalism or 
> against it" that 
> this implies.
> David E. Bernstein
> Visiting Professor
> University of Michigan School of Law
> Professor
> George Mason University School of Law
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