5 of 9 votes are neede to out the commerce clause this seems ot suggest Scalia will not be among the 4 thought guaranteed.
Alito or Scalito?
If you're a liberal, you'd prefer Scalia.
By Robert Gordon
Posted Tuesday, Nov. 1, 2005, at 6:24 PM ET
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.
Not gun specific but C.C. specific.
Who's Writing Raich? Another Possibility
Posted by Marty Lederman at 05:15 PM
As Tom has previously written, only two cases (Raich and Miller-El) remain pending from the "December" sitting; and Justices Stevens and Souter have yet to write majority opinions from that sitting. This is odd, because -- as I wrote on the "Greedy Clerks" board earlier today -- it is unlikely (but not out of the question, cf. Sabri) that the Chief Justice would assign Raich to be written by Justice Stevens or Justice Souter. Even if my earlier prediction is correct -- i.e., that the Government will win Raich 9-0 or 8-1 (depending on whether Justice Thomas writes a dissent or a concurrence hinting that Wickard v. Filburn should be overruled) -- I have a hard time imagining the Chief assigning even a unanimous opinion in the case to JPS or DS, because of the risk that they would write about Lopez and Morrison in a way that could not hold a five-Justice Court.
Therefore, I raised the possibility that perhaps the Chief Justice is actually in dissent, either (i) because he has voted to invalidate the statute as applied, or (ii) because, although the Chief Justice would sustain the law, Justice Stevens (presumably no fan of the policy decision to enforce of the law in this context -- see his concurrence in Oakland Cannibis Buyers' Co-op), has cobbled together five votes for invalidating the Act as applied, and is writing an opinion along the lines of: "I continue to believe that Lopez/Morrison were wrongly decided, but as long as five of my colleagues continue to insist that those cases are the law, their logic leads to the conclusion that the CSA is unconstitutional as applied here . . . ."
As I wrote in that post, I find both of these scenarios implausible (the latter much more than the former) -- which leaves me scratching my head. (Not that that's a bad thing -- this arm-chair speculation is only fun because the Court is not perfectly transparent, and occasionally throws a curveball.)
An astute observer writes, however, to raise another very intriguing possibility: Justice Souter was assigned to write the majority opinion in Johanns (the beef case); but he lost the votes of two Justices from among the Chief Justice and Justices Scalia and Thomas. Upon reflection, I think this may be the most likely scenario. Justice Souter's Johanns dissent begins as if it were once a majority opinion. And, based on the oral argument, I'd say it's not at all inconceivable that five Justices originally voted to strike down the beef statute because the attribution to the government was not sufficiently transparent (the principal theory of Justice Souter's opinion) -- but that two Justices were then persuaded that the possibility of false attribution is not grounds for invalidating the statute on its face (as Justice Scalia's opinion concludes).
If this theory is right, then I think the Chief Justice himself would be writing Raich, and Justice Stevens would be writing Miller-El. (For another possibility, see Tom's earlier post.)
[UPDATE: Another careful observer wonders whether perhaps it was not Justice Souter, but Justice Stevens, in Muehler v. Mena, who lost a December majority opinion when Justice Kennedy switched his vote over to the broader rationale of what was the Chief Justice's concurrence, thus making the Chief's opinion the majority opinion of the Court. Justice Kennedy's concurrence, which essentially explains why he is sympathetic to, but did not join, the Stevens opinion, seems a bit as if it's an apologia. I'm a bit skeptical, because Justice Stevens's Muehler concurrence doesn't read to me as if it were originally a majority opinion. But if this observer is correct, it would mean that Justice Souter would likely be writing Miller-El, with Raich penned by the Chief Justice.]
Here is an article for those with short memory or who live under a rock.
For John Roberts, it was a "hapless toad'' in the path of a California housing development that represented the limits of the federal government's power to regulate activities within a state. For Samuel Alito Jr., it was a machine gun.
In a lone dissenting opinion as a federal appeals court judge in 1996, Alito argued that the federal ban on possessing machine guns was unconstitutional -- a stand described by both admirers and detractors Tuesday as one of the most revealing cases in the lengthy judicial record of President Bush's nominee to the U.S. Supreme Court.
"He understands the original design of the Constitution as being one of limited government,'' said Roger Pilon, director of the Center for Constitutional Studies at the libertarian Cato Institute. In his opinion, Alito said the federal ban on possessing machine guns exceeded Congress' power to regulate interstate commerce, but a majority of his court disagreed, and the Supreme Court denied review. He took no position on whether the Constitution protects an individual's right to possess firearms.
Pilon said the case showed Alito's recognition that Congress' constitutional power to regulate interstate commerce is not a license "to regulate anything and everything.''
But Dennis Henigan, legal director of the Brady Center to Prevent Gun Violence, said the opinion is "perhaps the most powerful evidence that Judge Alito is very much a right-wing judicial activist'' willing to disregard congressional judgment. Another critic, Douglas Kendall, executive director of the Community Rights Counsel, said Alito's opinion is disturbing for reasons that have little to do with gun control.
The case "suggests that he will impose rather significant limits on federal authority'' over interstate commerce, the basis for a wide range of laws, said Kendall, whose Washington, D.C., organization supports regulation of the environment and public health. He said the issue of federal power is critical to two cases the Supreme Court plans to review this term testing the limits of the government's authority to prohibit pollution of wetlands under the Clean Water Act.
The machine gun case was decided by the Third U.S. Circuit Court of Appeals in Philadelphia a year after the U.S. Supreme Court overturned as unconstitutional a federal law banning gun possession near schools. The Supreme Court said congressional power over interstate commerce does not extend to guns that might have been obtained within the state and were not being used for any commercial purpose -- the first ruling to overturn a law on interstate commerce grounds since the 1930s.
Pennsylvania gun dealer Raymond Rybar Jr., sentenced to 18 months in prison for possessing and selling two machine guns, argued in his appeal that a 1986 federal law banning the possession or transfer of machine guns was unconstitutional because it applied to weapons that had never crossed state lines or affected interstate commerce. A 2-1 majority of the appeals court disagreed.
Unlike the law on guns near schools, the court majority said, the machine-gun ban was supported by findings in federal gun laws since the 1930s that there was widespread interstate traffic in guns, including surplus military weapons from other countries, and that state regulation was inadequate. Another distinction, the court said, is that the 1986 law applied to all areas of the nation and not just to possession of guns in certain local areas.
Alito began his dissenting opinion by suggesting that the majority was treating the Supreme Court's 1995 ruling as "a constitutional freak'' rather than a recognition that the Constitution "still imposes some meaningful limits on congressional power.''
Congressional findings about gun trafficking in older laws were irrelevant, he argued, to the question of whether possessing a machine gun has any effect on interstate commerce. Whatever role machine guns play in nationwide crime, Alito said, the mere act of possessing one within a state is no more of an interstate, or economic, activity than possessing a gun near a school.
He said the law might be valid if it was limited to machine guns that crossed state lines, or if Congress had included findings about the impact of those weapons on interstate commerce. That suggestion was derided by the court majority, which said Congress was not required to "play Show and Tell with the federal courts'' to validate a law.
The same legal issue arose during Roberts' confirmation as chief justice in September, based on a dissenting opinion he wrote as an appeals court judge in 2003. The opinion questioned federal authority to protect a "hapless toad'' that was found only in California and had no obvious connection to interstate commerce. Roberts, at his confirmation hearing, said he had never meant to suggest that the government lacked power to protect endangered species.
The Supreme Court is closely divided on conflicts between federal and state power, in cases ranging from environmental regulation to civil rights. Justice Sandra Day O'Connor, whom Alito has been nominated to succeed, has been a strong supporter of state autonomy.
Critics of Alito's 1996 opinion point out that the machine-gun law has been upheld by every federal court that has considered it. Rybar, the Pennsylvania gun dealer, appealed his case to the Supreme Court, which denied review.
"When conservatives decry liberal judicial activism, they purport to be talking about judges who are unelected and who second-guess the wisdom of elected legislators,'' said the Brady Center's Henigan. He said the same description applies to Alito's opinion.
A supporter of Alito countered that the judge should not be criticized for going against the grain.
"I think the lower courts after (the 1995 ruling) were resistant to the Supreme Court's direction. Judge Alito was not,'' said Pepperdine University Law Professor Douglas Kmiec. He said the ruling indicates that Alito, as a high court justice, would "strongly defend the federalist structure of the Constitution.''
Bump for day crowd.
Highlighting loses its effect when overused.
Just using it to define what I wrote and not.