The Magazine

Alito, Then and Now

Dec 5, 2005, Vol. 11, No. 12 • By TERRY EASTLAND, FOR THE EDITORS
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On the Warren Court's criminal procedure cases that he disagreed with as a college student, for example, he could cite the difficulties the early critics (of varying political views) found in Miranda v. Arizona and Mapp v. Ohio (assuming they are the cases the young Alito found problematic) and indeed the Supreme Court's subsequent narrowing of their reach, without prejudging how he might decide cases brought under either precedent today. Likewise, again without declaring how he might rule in some hypothetical case, he could point to the doctrinal difficulties in Establishment-Clause jurisprudence that the Warren Court handed to the Burger Court, which then (in 1971) propounded the notorious "Lemon test," dissented from by no fewer than six Supreme Court justices over the past 30 years. On reapportionment, Alito is telling senators that he is committed to the "one-man, one-vote" principle elaborated in the line of cases begun with Gray v. Sanders. Here again, it strikes us that Alito need not shy from relating his view of the reapportionment cases when he first encountered them in the late 1960s, and we suspect that he found persuasive the famous dissents of Justice John Marshall Harlan.

On quotas, Alito could relate his involvement in Wygant v. Jackson Board of Education (1986) without crossing the line into how he would see a hypothetical challenge to preferences today. (On Wygant, by the way, let whoever so desires defend the quotas that the Supreme Court struck down in that case.) Finally, on abortion, Alito could describe his participation in the 1986 Thornburgh case and review the widespread criticisms of Roe (Justice Ginsburg herself was a critic) without saying how he would opine on a hypothetical challenge to Roe or to Planned Parenthood v. Casey, in which the Court explicitly declined to overrule Roe.

Finally, Alito should be prepared for someone to ask whether he still is a political conservative, and how he feels today about his service in the Reagan Justice Department. Is it too obvious to state that conservatives will be annoyed if Alito says that he is no longer a conservative or proud to have worked for Reagan at Justice? That would be a confirmation conversion too horrible to contemplate. But we don't believe that Alito has changed his mind or has suddenly become timid. Again, being a political conservative is no disqualification for the High Court. And a conservative is what you'd expect to be named to the Court, if elections mean anything. At the same time, being able to distinguish between politics of whatever stripe and the law is what we rightly prize in a justice. This is where Alito's record on the bench is dispositive, for it demonstrates that in this important quality, he is an exemplary nominee.

--Terry Eastland, for the Editors