Justice Alito: The Burkean Justice

July 11th, 2011

The Weekly Standard has a profile of Justice Alito, the Court’s Burkean Justice. In order to explain Alito’s votes in Snyder v.Phelps, US v. Stevens, and Brown v. EMA, Adam White turns to Alito’s writings about Burke, Bickel, and deference to judicial democratic majorities.

Justice Alito is uniquely attuned to the space that the Constitution preserves for local communities to defend the vulnerable and to protect traditional values. In these three new opinions, more than any others, he has emerged as the Court’s Burkean justice.

A review of Alito’s SnyderBrown, and Stevens opinions quickly suggests the common theme: Alito, more than any of his colleagues, would not allow broad characterizations of the freedom of speech effectively to immunize unlawful actions. He sharply criticized the Court for making generalized pronouncements on the First Amendment’s reach, when the Court’s reiterations of theory glossed over the difficult factual questions that had given rise to regulation in the first place​—​whether in grouping brutal verbal attacks with protected political speech; or in equating interactive Duke Nukem games with the text of Grimm’s Fairy Tales; or in extending constitutional protection to the video of women illegally crushing animals. And Alito was particularly sensitive to the Court’s refusal to grant at least a modicum of deference to the local communities and state officials who were attempting to protect their populations against actions that they found so injurious as to require state intervention.

In sum, those cases cast into stark relief the difference between Alito’s judicial instincts and those of his three conservative brethren. And for that reason, many onlookers have begun to seek the roots of Alito’s own particular conservative judicial temperament.

And where do these beliefs come from?

They are not hard to locate. In fact, he reiterated them under klieg lights at his Supreme Court confirmation hearing. He had no choice but to explain himself, as senators questioned him on a letter he’d written 20 years before.

In November 1985, Samuel Alito was a 35-year-old assistant to the U.S. solicitor general, arguing Supreme Court cases on behalf of the Reagan administration, when he applied for the open position leading the Department of Justice’s Office of Legal Counsel, the office charged with resolving the most difficult questions of constitutional law for the executive branch. To prove his conservative bona fides he wrote a letter laying out the roots of his conservatism:

When I first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley, Jr., the National Review, and Barry Goldwater’s 1964 campaign. In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment. I discovered the writings of Alexander Bickel advocating judicial restraint, and it was largely for this reason that I decided to go to Yale Law School.

And, Alito urged, “I believe very strongly” in “the legitimacy of a government role in protecting traditional values.”

As a piece of advocacy, young Alito’s letter succeeded in convincing its audience. (He got the OLC job.) But 25 years later, it stands for much more, pointing the reader to at least three themes and influences that manifest themselves in Justice Alito’s opinions: government’s legitimate role in “protecting traditional values”; the thought of Yale professor Alexander Bickel, a Burkean conservative whose work was largely overshadowed by the emergence of modern “Originalist” jurisprudence; and the Warren Court’s reapportionment cases, which Alito’s father had the job of implementing in New Jersey.

Alito’s 1985 letter did not go unnoticed at his Supreme Court confirmation hearings. After it was retrieved from the Reagan Presidential Library, Senate Democrats and outside critics seized upon it as evidence of radical right-wing views, especially his alleged opposition to the 1960s Warren Court’s electoral districting principle of “one person, one vote.”

And how doe McDonald v. Chicago fit into this jurisrpudence, where he struck down a popularly enacted gun control law in Chicago?

Nor is his deference to state and local governments unbounded. In cases where the facts clearly are not on the state’s side, or where the constitutional dispute and regulations at issue have been in place long enough for the Court to act with prudence, Alito can be expected to act decisively.

The clearest example of this is last year’s McDonald v. City of Chicago, where Alito wrote for the five-justice majority striking down Chicago’s handgun ban as violating the Second Amendment right to keep and bear arms. In that case, where (as Alito noted at the outset of his opinion) Chicago’s enactment of the handgun ban was followed by an increase in the murder rate, and where the Court’s previous decision in Heller left little room for novel constitutional interpretation, Alito was unwilling to give local officials the benefit of the doubt.

But the difference between Scalia’s and Thomas’s particular brands of Originalism and Alito’s own mode of constitutional decision-making is very real, and it will continue to manifest itself in interesting ways.

Very thorough read.

H/T Bainbridge