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In W.H. Auden’s famous poem “Law Like Love,” each order of life imagines law in terms of its own concerns. One of the great divides is generational:
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
Not long ago, I wrote a column suggesting that this year’s term of the Supreme Court — which opens today — may mark the end of Justice Scalia’s reign as dominant ideological figure on the Court’s right wing. If that is correct, who could take his place? Well, there’s one candidate running, and his name is Sam Alito.
Before we dismiss his claim, consider that — as Neal Katyal, former acting solicitor general and Supreme Court litigator, recently pointed out — the very first case of this year’s term, Kiobel v. Royal Dutch Petroleum Co.– is being re-argued largely because of one particularly sharp question Alito posed at oral argument last term. The case pits a group of Nigerian nationals against a Dutch corporation whom the plaintiffs accuse of aiding and abetting human-rights abuses in Nigeria. When the parties arose to argue, the question presented was whether corporations as a class possessed blanket immunity to suit under the Alien Tort Statute. But Alito’s first comment from the bench was “the question is whether there’s any other country in the world where these plaintiffs could have brought these claims against the Respondents.” Later, he asked, “what business does a case like that have in the courts of the United States?” After argument, the case was rescheduled. Today the Court will hear arguments about Alito’s underlying question — whether the Alien Tort Statute permits suits against any defendant “for violations of the law of nations occurring within the territory of a sovereign other than the United States.”
When George W. Bush nominated Alito in 2006, even his allies nicknamed him “Scalito,” as if the Italian-American justice was sure to be a kind of federalist Mini-me. Superficially, Scalia and Alito seemed to be similar — both natives of the New York region, both products of Catholic families, both former executive-branch lawyers for Republican presidents, and, most important, both holders of unimpeachable conservative credentials.
But Alito has become a kind of un-Scalia. Scalia is an “originalist”; in deciding constitutional cases, he reads the Big History Book and tells the rest of us the “original public meaning” of the Constitution. Originalism, even though it flourishes in the 20-first century academe, was originally a political movement, invented during the Reagan years as a club to berate “activist” judges who voted for reproductive rights or limits on the death penalty. It has succeeded so well that it is now entering the final stage of Hollywood Fame. (1. What’s Originalism? 2. Get me an Originalist. 3. Get me an Originalist type. 4. What’s Originalism?) And “Scalito” is not only not Mini-me, he’s not an originalist at all.
During argument in Brown v. Entertainment Merchants Association (the “violent video games” case), Alito interrupted a Scalia question to say, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?” In United States v. Jones, in which the issue was whether placing a GPS tracking device on a suspect’s car is a “search” within the meaning of the Fourteenth Amendment, Alito wrote separately to ridicule Scalia’s turn to the common law of the Georgian era to decide a case about computerized earth-satellite data. “Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?” he wrote.
Both justices are very conservative. But Scalia’s conservatism looks back, invoking the spirits of the Framers. Alito’s is forward-looking. He frequently discusses the dystopian implications of modern technology — whether it be GPS trackers, the Internet, video games, or violent pornography and “crush” videos. Scalia asks how things were done in the past, because the past was good; Alito asks how they should be done in the future, lest the future be bad. Scalia talks about principles; Alito talks about consequences. If this were not a mean thing to say about a conservative, one would call Alito a pragmatist, the Stephen Breyer of the right.
If Alito does become the agenda-setter (by no means a sure thing), how would doctrine differ? Both men are rigidly opposed to affirmative action; neither seems to have the slightest patience for gay rights. They do differ sharply on the First Amendment. Both follow the strand of conservative judicial thought — illustrated in a recent article by Temple law professor David Kairys — that the First Amendment exists to empower the powerful rather than offer voice to the lowly. But Scalia is swayed by historical precedent to defend the speech of those he dislikes; Alito, outside the campaign-finance area, rarely meets a restriction on “distasteful” speech — by funeral protesters, gay-rights advocates, or purveyors of dog-fight videos — that he does not embrace.
During arguments in the health-care cases, Justice Scalia (when he managed to focus on the questions presented at all) phrased his questions in terms of “liberty.” But Alito’s questions were highly specific references to the arguments of economists and actuaries. His concern seemed to be economic rights.
Alito is more restrained on the bench, but, like Scalia, he is prone to tantrums in argument and in opinions. In the issues that concern him, he is as emotional as Scalia. (Emily Bazelon memorably characterised as displaying “selective empathy.” The objects of his concern are very particular, she noted, consisting chiefly of “people who are a lot like him.”) A Court in which Alito is a dominant influence would speak a radically different language than we have heard from Scalia and those responding to him.
This year’s term will give us a picture of how the battle of ideas on the right fares at this moment. Mention of actuarial science underscores one fact: the impotent grandfathers usually don’t win. Scalia is visibly faltering. If conservatism is to triumph, it will be carried forward in new hands.
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