Balkinization: What the Alito Nomination Means for Constitutional Law

What the Alito Nomination Means for Constitutional Law

What effects will an Alito appointment have on Supreme Court doctrine? Fairly significant changes, particularly in the areas that social conservatives most care about.

Assume for the moment that Alito is confirmed by Christmas. The Supreme Court will probably hold over the New Hampshire abortion case, Ayotte, for reargument, if, as expected, the Justices vote 4-4 (excluding Justice O'Connor's vote, which will not count if she retires in December). On the other hand, if Justice Kennedy joins the liberals in Ayotte, Justice O'Connor's vote will not matter and the case will be decided 5-3.

What happens in Ayotte may be a harbinger of things to come. If successful, Alito's nomination will make Anthony Kennedy the median or swing Justice on the U.S. Supreme Court. In the past, Sandra Day O'Connor had held that powerful position, only occasionally displaced by Kennedy. Now it is largely Kennedy's, with occasional displacements by Breyer.

Put another way, to understand what Alito's appointment means for constitutional doctrine, instead of focusing on Alito's views (which one assumes are reliably conservative), one needs to focus on Kennedy's. We know that the new median Justice supports abortion rights claims a little less than O'Connor (Kennedy voted to uphold restrictions on partial birth abortion), supports gay rights claims a bit more than O'Connor (Kennedy wrote the opinion in Lawrence), thinks affirmative action is largely unconstitutional (Kennedy dissented in Grutter), thinks most campaign finance regulation is unconstitutional (Kennedy dissented (in part) in McConnell) and has been more likely to permit government endorsements of religion and state financial support for religion than O'Connor (Kennedy dissented in Mccreary County v. ACLU and joined Mitchell v. Helms). On federalism, it's a mixed bag: Kennedy joined Raich v. Ashcroft but dissented in the two most recent section five cases, Tennesee v. Lane and Hibbs. On Presidential power, the position of the new median justice, interestingly enough, appears to be unchanged. Although Rehnquist and O'Connor and Rehnquist are gone, the Administration would still have lost Hamdi, because its position was opposed by Kennedy, Scalia, Stevens, Breyer, Souter, and Ginsburg.

Thus, Alito (together with Chief Justice Roberts) will cause some pretty significant shifts in Supreme Court doctrine, most notably in areas of religion, abortion, affirmative action, and campaign finance, but not yet in the area of gay rights. Changes in doctrines of federalism and presidential power are a bit less clear. These shifts will come in most of the places that movement conservatives are looking for changes in constitutional doctrine, which is why they will be delighted by an Alito appointment. The greatest irony, perhaps, is that although many movement conservatives now loathe Anthony Kennedy, all the changes in doctrine I've outlined will occur because Kennedy now holds the swing vote.

Finally, if Justice Stevens were to retire in the next few years, and be replaced by a staunch conservative, we would have a full scale constitutional revolution on our hands. For then the median Justices would be none other than John Roberts and Samuel Alito.

Posted 6:14 AM by JB [link]

Comments:

I like your analysis, and think it's probably right in general. But it does seem to require at least two things:

1. That Roberts is not, in fact, the new median/swing voter. I suspect there is little chance of this; but, as people have largely forgotten in the wake of Miers, we actually know comparatively little about Roberts' positions on many of these issues.

2. We also have to assume that Kennedy's dissenting opinions in those cases were not enabled by the fac that O'Connor had already cast a decisive vote. That is, it's possible that Kennedy, had *he* been the pivotal/swing voter in those cases, might have been a bit more moderate/left (cf. TX v. Johnson, maybe?). The point, as Newt Gingrich famously found out, is that being in the majority is very different than dissenting from the minority.

# posted by

the pooka : 8:47 AM

I agree pooka -- that roberts might swing on some issues. Including gay rights.

Speaking of which, does anybody have any clue what Alito thinks about gay rights? I do not take his abortion or religion position as determining that issue; nor do I view his free speech position as determining that issue (Kennedy is a pretty good example of a pro-gay Justice who is conservative on the other aforementioned issues). Is there ANY gay paper trail at all for the new guy?

# posted by

Mike in NYC : 12:47 PM

It seems to me that O'Connor's position in Lawrence was more favorable to gay rights than Kennedy's. She made an equal protection argument. The majority opinion had very little to do with protecting homosexuals as a class.

Finally, if Justice Stevens were to retire in the next few years, and be replaced by a staunch conservative, we would have a full scale constitutional revolution on our hands. For then the median Justices would be none other than John Roberts and Samuel Alito.

Why are you assuming that if Bush gets a third SCOTUS appointment, he would pick someone to the right of Roberts and Alito?

# posted by

FXKLM : 12:59 PM

I'm sure JB's analysis was not intended to be all-encompassing. With that said, another area where Alito will have a fundamental impact is in the 4th Amendment area, particularly when search warrants lack particularity. SOC was the critical 5th vote in Groh v. Ramirez, in which SCOTUS held that a general warrant that fails to incorporate the agent's affidavit not only violates the 4th A but precludes the application of Leon's good faith exception as well as its civil counterpart, qualified immunity.

Alito, on the other hand, dissented from an opinion written by Mike Chertoff in Doe v. Groody, in which -- like Groh -- the warrant failed to particularize the people to be searched at the search site. Alito argued in dissent that the warrant form's perfunctory, pre-printed statement that the agent's more particularized affidavit showed probable cause created an ambiguity that should allow a finding of good faith on the agent's part.

Alito's dissent ignored the fact that Groh involved the identical situation -- a preprinted a search warrant form that said in passing that the agent's affidavit supported a probable-cause finding. Nevertheless, the majority opinion gave that fact absolutely no weight in holding that the agent's affidavit was NOT incorporated by reference.

Alito's approach would eviscerate the 4th Amendment's warrant requirement, certainly at a federal level, because all federal warrants use a preprinted form that states perfunctorily that the affidavit supports a finding of probable cause. Under Alito's theory, this general, nonspecific language would create a sufficient ambiguity so as to allow a finding of the agent's good faith as a matter of law.

Alito, like Roberts (and probably most of the other Justices), heavily favors the government vis-a-vis individuals, especially in criminal cases. Sad to say, the Bill of Rights -- except the 2nd Amendment -- continues to be narrowed to the point of becoming the exception rather than the rule.

# posted by

snead16 : 3:57 PM

This is a nomineed for the Supreme Court, which has enabled the enormous corruption of the political system by the propertied classes and the giant globalized corporations, and the results are the worst distribution of income, the worst poverty among the industrialized nations. Yet how limited are the issues over which the nomination will be fought: abortion limits, affirmative action, government endorsement of religion, privacy and states rights. Another 'liberal' battle that avoids the takeover of our democracy by money and corporate power.

# posted by

__Fair Left__ : 4:03 PM

"It seems to me that O'Connor's position in Lawrence was more favorable to gay rights than Kennedy's. She made an equal protection argument. The majority opinion had very little to do with protecting homosexuals as a class"

O'Connor expressly limited her opinion. The majority was more libertarian and distinctly noted that the EP argument was sound. They went further, while saying that due process and equality works hand in hand.

Overall I agree with Balkin's point. The "swing on some issues" given the homosexual issue is unintentionally (?) amusing.

# posted by

Joe : 6:14 PM

The Washington Blade did a quickie "gay paper trail" article here.

Key quote: "Both opinions were written on behalf of unanimous three-judge panels of the Third Circuit Court of Appeals, based in Philadelphia.The split between the two school rulings by Alito — one striking down a broadly worded anti-harassment policy and the other protecting a student subjected to severe anti-gay harassment — suggest that while Alito is a conservative judge, he is not afraid to use the court's power to remedy a situation he views as unjust."

FWIW--

Eve

# posted by

Eve : 10:23 PM

The New York Times analyzes Alito's abortion rulings as stemming from a traditional concept of marriage. "Traditional marriage" has recently come to mean and embody "heteronormative" marriage, so the Times strongly suggests in its wording that Alito will not be open to same-sex marriages.

A footnote to Cai Luan Chen v. Ashcroft, quoted in the times article, is especially interesting:
Indeed, the marriage relation is used in so many areas of the law (income tax, welfare benefits, property, inheritance, testimonial privilege, etc.) that it would seem absurd to characterize reliance on marital status in C-Y-Z- as arbitrary and capricious.

I don't agree with him --- Alito mentions Montgomery v. Carr, in which it's deemed rational (!) to enforce anti-nepotism rules against married couples but not unmarried cohabitants --- because I'd rather the State recognize that there can be close, marriage-like relationships deserving special status other than marriage, but I can see his argument. The reason I flag this passage is that Alito is unlikely, given the wording, to support marriage-like civil unions for same-sex couples. He has, as far as I know, left open the possibility that same-sex couples' equal protection and due process rights grant them access to actual marriage.

There will need to be a number of cases at the national level confirming equal-protection rights for same-sex couples before an actual gay-marriage case is brought to SCOTUS. And I have no idea how Alito will rule on DOMA --- this is a case that should come soon, especially since California will is more likely than not to have gender-free marriage in the next few years, and one that isn't immediately obvious. Does DOMA violate Full Faith & Merit? And which side represents states' rights (i.e. what would O'Connor think): states have the right to grant marriages that the Union will respect (and Congress does not have the right to ignore them), or states have the right to refuse marriages they disagree with?

# posted by

Theo : 12:58 AM

I think you mean Rasul, not Hamdi.

# posted by

Shayana Kadidal : 10:37 AM

Actually, I think you would have a full-scale counterrevolution on your hands. Calling it a revolution suggests that they are doing something shocking and new, rather than simply reversing the distortions created by liberal Justices in the past seventy years.

# posted by

Simon : 2:46 PM