From guestblogger Thomas:
Judge Sam Alito, or “Scalito” (because he’s at least as conservative as Scalia) has gotten a lot of press since his nomination. Roundup links are on every political blog, and I won’t try to replicate that here. Rather, I want to focus on one aspect of Scalito that I find troubling. The administration has talked about “judicial restraint” in a way that renders the term meaningless at best and Orwellian at worst, like the “healthy forest initiative” (which meant, “cutting down more trees”). Alito is no restrained jurist. He is, rather, a hammer-swinging activist who wants to change the way the American legal system works. There are major pillars of the current understanding of the Constitution that he appears to disagree with. He is not shy about throwing the weight of the bench full-force into the acts of legislators and smashing them to bits. Calling it “strict constructionism” isn’t really accurate, but calling it “restraint” is just misleading.
The inimitable Dahlia Lithwick picks up on this in her Slate piece:
“Best of all for Bush’s base, Alito is the kind of “restrained” jurist who isn’t above striking down acts of Congress whenever they offend him. Bush noted this morning: “He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.”
Except, of course, that Alito doesn’t think Congress has the power to regulate machine-gun possession, or to broadly enforce the Family and Medical Leave Act, … In that sense Bush has pulled off the perfect Halloween maneuver: He’s managed the trick of getting his sticky scandals off the front pages, and the treat of a right-wing activist dressed up as a constitutional minimalist.”
I’ve edited this down because I want to focus on just those first two cases Lithwick noted: Chittister v. Dept. of Community Econ. Dev. (the Family Medical Leave Act case) and Rybar V. United States (the machine gun possession case).
Chittister was already covered by Angrybear here.
To briefly summarize, Alito dissented from the other two judges on the three-judge panel. The problem Congress sought to fix in the FMLA was the disproportionate impact of childbearing on women in the workplace. To the Supremes (as lawyers sometimes call them), this was not all that tough a call. The question was, in part, whether Congress was within the limits of its power to find that there was a history of disparate impact of childbearing on women, and to enact the FMLA to fix it. Rehnquist was joined by five other justices (everyone but Kennedy, Thomas and, you guessed it, Scalia) in holding that, yes, the legislature could properly make those findings and pass that law. In doing so, they rejected Scalito’s position, and highlighted just how far out is was. The decision is in the link and Angrybear has the quote, so I’ll only summarize. Scalito said that Congress didn’t have enough support for finding that childbearing disproportionately affected women. Worse, he said that even if it had, mandating family leave was not a reasonable way to fix the problem.
First, there’s narrow issue: Alito’s belief that there was no support for the conclusion Congress reached. Not to put too fine a point on it, but this view is one that folks could only really hold if what they really think is that the “moms stay home to raise the kids” paradigm is ordained by some higher order that we shouldn’t mess with.
So, Alito wanted the Third Circuit to kill that part of the FMLA, using his interpretation of the Constitution and his view of the world to overrule what Congress thought the facts and policy solution were. And that raises the second issue: Alito has a really, really narrow view of what Congress ought to be able to do. This is in line with the “federalism” of the Federalist Society, the ideological movement among judges and legal academics that is their contribution to the conservative movement. They want to limit the power of Congress to regulate because, really, they think that both businesses and theocrats will do better with the states (unless they are losing in the states or think they can win in the federal government – witness same sex marriage, and the Class Action Fairness Act which moved most class action cases from state to federal courts).
To show just how much of the current legal infrastructure Alito calls into question, we ought to look at Rybar
This is the machine gun case. Brief backstory: In 1995, the Supremes invalidated a gun-free school zone provision of a broader law regulating firearms. They said that the Commerce Clause did not extend so far that, without any specific finding that it affected interstate commerce, Congress could regulate what could be possessed near a school. It was a bit of a shock, since before that most lawyers though the commerce clause was virtually infinite. In Wickard v. Filburn in 1942, the Supremes held that Congress could regulate production of wheat for a farmer’s own consumption because it affected the broader interstate wheat market – well, if the commerce clause extends that far, it really has no limit at least where regulating products and consumption are concerned.
So, in a case called Lopez, the Court struck 18 USC 922(q), the school-zone provision. Then, in 1996, some sketchy gun dealer was arrested in Pennsylvania for selling a machine gun. In 18 USC 922(o), a different provision of the same law in Lopez, Congress said you can’t own a machine gun. Now, lots of asshole gun dealers and bad guys had run afoul of this, and in several cases, they challenged the provision on Lopez grounds. Every circuit, including the conservative Seventh, said, in effect, “What are you, kidding me with this? Of course the Commerce Clause permits Congress to say you can’t own a damned machine gun. And they don’t have to say exactly what their findings are, because it’s pretty obvious.” And so did Alito’s circuit, led by Chief Judge Delores Sloviter. But not Alito – he dissented. In a long and frighteningly well-written opinion, he tries to lay the intellectual groundwork to read Lopez as a broad gutting of the power of Congress to regulate. Other circuits had several good arguments – like, in order to possess a machine gun, you have to buy it, and drying up the market to buy them will certainly reduce the interstate traffic in machine guns. (I believe this is, by the way, the same reasoning that allow Congress to outlaw the possession of child pornography.) But Alito doesn’t accept that. He thinks that Congress would have to specifically make findings to this effect before it is entitled to regulate in that area.
Why did Alito do this? It’s not as if he’s saying that Congress couldn’t make such a finding and re-pass the act. So he’s not trying to protect machine gun ownership. And he’s a former prosecutor who according to some lawyers never saw a defendants’ right that he liked. He’s not trying to help out the gun dealers. He’s got bigger fish to fry.
What Alito was doing was taking the little hole in the broad power of Congress that Lopez made, and ripping at it to make it as big as he could, until he rips up Wickard and reduces the power of Congress to regulate commerce to a fraction of what it is today: as Grover Norquist says, “shrink the government until I can drown it in the bathtub.”
But Thomas, you may say (if you’re really interested in con law and still reading this), are there really people that want to overturn sixty years of Commerce Clause jurisprudence? Well, here we have conservatarian gadfly JeffG, on his own blog, quoting from his readership in rubbishing Wickard. Because the Commerce Clause undergirds so much of what Congress can do, and a lot of folks on the far, far right want to tear it in half. It sure looks like Scalito is one of those folks.