The Burkean Justice
Samuel Alito’s understanding of community and tradition distinguishes him from his Supreme Court colleagues
Jul 18, 2011, Vol. 16, No. 41 • By ADAM J. WHITE
Justice Alito’s vision of the First Amendment and local community values found no support among his brethren in the Snyder case. And just four months later he rejected the majority’s analysis again, in another case involving the First Amendment and local protections against harmful communications: Brown v. Entertainment Merchants Association.
Brown (as in Governor Jerry Brown) involved California’s Assembly Bill 1179, a six-year-old law barring the sale or rental of “violent video games” to minors absent parental consent. The law applied to games involving “killing, maiming, dismembering, or sexually assaulting an image of a human being.” And like Snyder’s tort of intentional infliction of emotion distress, the law’s application turned on community values, barring those images only if a “reasonable person, considering the game as a whole,” found the images “patently offensive to prevailing standards in the community as to what is suitable for minors” and without serious artistic, literary, political, or scientific value for minors.
The Court, this time led by Justice Antonin Scalia, struck down California’s law as violating the First Amendment’s protections. Scalia’s majority opinion briskly rejected the state’s arguments. First, he explained that California could not satisfy the First Amendment by modeling its law on previously Court-approved laws banning the distribution of pornography to minors, because the California video-game law was not limited to “obscene” images that traditionally receive lessened constitutional protection; instead, the California law would be tested under more exacting First Amendment standards.
Second, California failed to meet those strict standards. Rejecting the state’s evidence purporting to identify a link between violent video games and harmful effects on children, the Court concluded that the studies “do not prove that violent video games cause minors to act aggressively”; the evidence may have shown correlation, but the Court would not accept it as proof of causation.
Scalia is well known for his sharp phrasing, and in that respect his opinion for the Brown majority was exemplary, dispatching California’s suggestion that there is a “longstanding tradition” of limiting minors’ access to violent imagery. Invoking Grimm’s Fairy Tales—“And Hansel and Gretel (children!) kill their captor by baking her in an oven”—as well as The Odyssey of Homer, Dante’s Inferno, and Lord of the Flies (“a schoolboy called Piggy is savagely murdered by other children”), Scalia mocked the state’s assertion that interactive video games empowering children to direct on-screen murder and rape pose a unique threat: “Interactive” control of characters “is nothing new,” because “choose-your-own-adventure”-style books have been available since at least 1969.
Finally, Scalia’s majority opinion rejected California’s argument that the law was necessary “in aid of parental authority.” According to the Court, “punishing” video-game sellers “for conveying protected speech to children just in case their parents disapprove of that speech” is not “a proper governmental means of aiding parental authority”; in any event, California failed to convince the Court that California parents actually needed help restricting their children’s access to violent video games. Noting the fact that not all parents care about whether their children buy violent video games, the Court rejected the state’s power to legislate in favor of “what the State thinks parents ought to want.”
Scalia’s majority opinion spoke for five justices. Alito was not among them. He wrote his own opinion (joined by Chief Justice Roberts) rejecting the Court’s entire analysis—especially its refusal to defer to state officials’ attempts to protect both parents and the children whose minds and morals those parents sought to protect.
To be clear, Alito did agree with the Court’s ultimate conclusion that this particular state law could not survive First Amendment scrutiny. (Accordingly, he disagreed with both of the justices who would have affirmed California’s statute: Justice Clarence Thomas, who concluded that the founding generation’s “freedom of speech” left parents with absolute authority to block people from communicating with their children; and Justice Stephen Breyer, who concluded that California’s restrictions on speech were sufficiently narrow to pass First Amendment muster.)
But despite sharing the majority’s bottom-line conclusion, Alito rejected the Court’s entire analysis, and reached the same conclusion by much narrower reasons. He would have held that the state law’s operative term, “violent video game,” failed to satisfy the Court’s precedents prohibiting unduly “vague” restrictions on speech. After quickly establishing that point, Justice Alito spent the remainder of his opinion criticizing the majority’s categorical refusal to defer to California’s judgment on the difficult questions of what Californian parents want, or what Californian children need, in the new world of realistic video-game violence. And he began with an unflinching call for judicial modesty when rejecting local judgment:
Where the Court’s majority briskly rejected the suggestion that today’s Grand Theft Auto or Duke Nukem Forever so thoroughly differs in kind from, say, yesterday’s Choose Your Own Adventure: Space Patrol as to warrant different constitutional treatment, Alito reviewed extensive evidence and argument suggesting that modern interactive video games pose an unprecedented threat to children’s minds and morals. “In some of these games, the violence is astounding. Victims by the dozens are killed by every imaginable implement. . . . They cry out in agony and beg for mercy. . . . The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women.”
Scalia’s opinion for the Court criticized this “considerable independent research,” asserting that Alito “recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression.” Scalia, however, misunderstood his colleague’s point: The shocking degrees of violence employed in modern video games, combined with an unprecedented opportunity for players to interact with the images on screen, threatens problems for which past media—comic books, movies, Hansel and Gretel—simply had no analogue. Even though the particular California law at issue was unconstitutionally vague, Alito would have left room for the state to craft a narrower law, and would not permanently and categorically “squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem.” As in Snyder, Alito would have left local government free to protect parents’ and children’s interests.
Last—or, chronologically, first—is the “crush video” case, United States v. Stevens. Unlike the Snyder and Brown cases, Stevens nominally involved a federal law, not a state law. In 1999, President Clinton signed “Section 48,” a criminal law outlawing the creation, possession, or sale of depictions of animal cruelty. But as the United States and 26 states urged in their briefs, the case implicated myriad state laws: namely, the state animal-cruelty laws that Congress had intended to reinforce by barring the distribution of videos depicting acts of cruelty to animals.
Litigation challenging the constitutionality of Section 48 reached the Supreme Court in 2009, and the Court issued its decision late in the 2009-2010 term. As in Snyder, Chief Justice Roberts wrote for all of his colleagues—except Alito—in striking down the law as violating the freedom of speech. The Court concluded that Section 48 was unconstitutionally “overbroad” because it could be read as prohibiting not just “crush videos,” but also instructional hunting videos or documentaries on livestock slaughter.
Alito’s solo dissent rejected the Court’s interpretation of Section 48: Applying what he saw to be a natural and fair reading of Section 48, a video would not include “animal cruelty” merely by depicting hunting or slaughter, because “virtually all state laws prohibiting animal cruelty” do not affect lawful hunting or slaughterhouse activities. And even were that not the case, those activities would still fall within Section 48’s safe harbor for depictions that have “serious” scientific, educational, or historical value.
Alito dedicated the rest of his opinion to Congress’s judgment that videos of animal cruelty needed to be regulated in order to support effectively state laws barring the act of animal cruelty. “In light of the practical problems thwarting the prosecution of the creators of crush videos under state animal cruelty laws”—the ability to identify on-camera perpetrators whose faces were obscured, for example—“Congress concluded that the only effective way of stopping the underlying criminal conduct was to prohibit the commercial exploitation of the videos of that conduct.”
In that respect, Alito’s view of “crush videos” presaged his later view on the Westboro funeral protests: The perpetrators were not simply speakers whose communications had incidental physical effects; they were actors, and government efforts to prohibit their deeds necessarily curtailed their communications. “The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes.” Alito was willing to defer to state judgments as to how “animal cruelty” would be defined and regulated, and to Congress’s judgment in supporting the states’ collective efforts.
A review of Alito’s Snyder, Brown, 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.
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:
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.”
But for all of the controversy that the letter sparked, its reference to “traditional values” went almost unnoticed, at least at the Senate confirmation hearing. The only person who raised the subject was Senator Herb Kohl, who on the first day of questions pressed Alito to explain “what traditional values” he was referring to and “who decides.”
After insisting that he could only try “to remember what I thought about that 20 years ago,” Alito explained it in terms that could easily have been found in his Snyder, Brown, and Stevens opinions five years later:
Senator Kohl did not follow up his question until the next day, when he called Alito’s answer “somewhat incomprehensible” and asked him to further expand upon “traditional values.” Alito largely reiterated his original answer, couching it in terms of what he might have thought were “traditional values” in the 1980s, when the letter was written.
By focusing on what Alito thought to be “traditional values” in 1985, both the senator and the nominee obscured the more important point. Of course it is interesting, especially after the most recent Supreme Court term, to hear Alito’s discussion of why he thought “traditional values” included parents’ authority to shield their children from the “psychological threats” posed by inappropriate influences.
But even more significant was the broader point made in Alito’s 1985 letter: that he believed “very strongly” in “the legitimacy of a government role in protecting traditional values.” Alito believed then—and now, evidently—that the Constitution ultimately afforded government bodies some space to identify what their particular communities deemed to be “traditional values” and to preserve those values against the threat of outside attack. And from the rest of his letter, and his attempt to explain that letter decades later, it is clear that the government actors that Alito had in mind were, first and foremost, the state and local officials who grapple daily with difficult questions of right and duty, aggressor and victim.
Judging from his 1985 letter, Alito’s support for the government’s legitimate defense of “traditional values” appears to be a predisposition that predated his education in the law. But his turn to legal theory, first at Princeton and then at Yale Law School, brought him to the next influential figure whose legacy is seen in Alito’s recent First Amendment opinions.
In the 1960s and ’70s, Yale’s Alexander Bickel was one of America’s most respected and influential legal scholars. He wrote a series of widely read books, law review articles, and essays in Commentary, the New Republic, and the New York Times. Today he is utterly forgotten, at least among the general population. Justice Alito is his last heir.
Born of Jewish-Romanian immigrants, Bickel graduated summa cum laude from Harvard Law School, clerked for Justice Felix Frankfurter, and joined the Yale faculty in 1956. But he rose to prominence with the publication of his second book, The Least Dangerous Branch. In that volume, which drew its name from Alexander Hamilton’s Federalist 78, Bickel reassessed the Court’s constitutional role in the aftermath of Brown v. Board of Education’s then-controversial school desegregation order. Because the Court is a counter-majoritarian force in American politics, he argued, the Court must exercise “the passive virtues,” deciding constitutional issues only when truly necessary. Instead of jumping headlong into heated political disputes, the Court’s justices, who (ideally) have “the leisure, the training, and the insulation to follow the ways of the scholar in pursuing the ends of government,” should take care to act as “the pronouncer and guardian” of the nation’s “enduring values.”
In The Least Dangerous Branch and other writings, Bickel laid out a theory of the Court and Constitution utterly distinct from the Originalist theories that Robert Bork, Raoul Berger, Antonin Scalia, and others brought to prominence in the 1970s and 1980s. Originalism is a jurisprudence founded on a theory: that judges can ascertain a legal text’s original public meaning and should apply that meaning to decide the case before them. Bickel’s conservatism, by contrast, was not Originalist—it was avowedly Burkean. “The Whig model” of judging, Bickel wrote,
Before Originalism became the conservative move-ment’s predominant jurisprudence, Bickel’s writings were highly regarded on the right; George Will reviewed Bickel’s criticism of the Warren Court’s activism and the left’s Nixon-era mania and declared him “the keenest public philosopher of our time.”
Bickel’s work moved Alito, too. Specifically, the young man discovered Bickel’s fifth book, The Supreme Court and the Idea of Progress, published halfway through his undergraduate study at Princeton. It “was probably the first book about what you might call constitutional theory that I had read,” he said at his Senate confirmation hearing; Bickel “was a great proponent of judicial self-restraint, and that was the main point that I took from my pre-law school study of the Warren Court.”
That book’s influence is easily seen in Alito’s Snyder, Brown, and Stevens opinions. Bickel wrote at the close of the Warren Court, and as he looked back upon the Court’s aggressive 1960s constitutional activism, he found that its eagerness to intervene had too often undermined the Court’s own laudable goals.
Or, to borrow a recent example, better to let states and local communities grapple with the new problem of super-violent, interactive video games, at least for a while, than to announce prematurely a national constitutional rule that frustrates broad segments of society holding good-faith concerns.
But reading Alito’s opinions, it is hard not to speculate that he was even more directly affected by something else that Bickel wrote. Just months after Alito began his study at Bickel’s law school, Bickel published an essay in Commentary on the question of free speech and social unrest. And shortly after Bickel died, during Alito’s third year at Yale, an adapted version of the essay was published in his posthumous volume, The Morality of Consent.
In his essay, Bickel criticized the Supreme Court’s eager grant of broad constitutional protections to the 1971 publication of the Pentagon Papers and other incitements and acts of disobedience, as well as obscenity, because they involved speech or publication. Just as Alito’s Snyder dissent rejected the idea that a protest is not an act that can be regulated and punished, but speech that receives constitutional protection, Bickel urged that “there is no bright line between communication and conduct. What is a live sex show—communication or conduct?” Rather than preempting all state and local efforts to handle the problem of obscenity and other difficult intersections of speech and conduct, “the Supreme Court, while exercising procedural oversight, ought to let state and local govern-ments run the risks if they wish. For the stakes are high.”
Justice Alito could have written those words himself, in his First Amendment opinions. On questions of the Constitution, the Court, and the lower levels of government, no other justice is so temperamentally attuned to Bickel’s work.
To the young Alito, Bickel’s arguments rang true not just in the abstract; he had witnessed them in action, in his very own home. Responding to Senator Kohl at the confirmation hearing, he explained why Bickel’s criticism of the Warren Court caught his attention: Bickel’s book The Supreme Court and the Idea of Progress “addressed the issue of one person, one vote, and that linked up in my mind with the experiences of my father in working on the reapportionment of the New Jersey legislature.” That story, of Samuel Alito Sr.’s work in New Jersey’s redistricting debates, was told by many while Samuel Alito Jr. was enduring the confirmation process.
In 1964, the Supreme Court declared that the Fourteenth Amendment’s guarantee of “the equal protection of the laws” required the states to obey the rule of “one person, one vote” and redraw their electoral districts to ensure that every legislative seat represented a similar share of the population. The rule eliminated the states’ longstanding practice of drawing districts that gathered large groups of urban voters into a few urban districts, thus giving rural voters disproportionately large voices in the legislature.
Even setting aside the acrimony that arose in response to Reynolds v. Sims, the Court’s announcement of the “one person, one vote” standard posed an excruciatingly difficult practical question: How would states actually implement that rule and draw those districts?
In New Jersey, the task largely fell to Samuel Alito Sr., a registered Republican, who ran the state legislature’s nonpartisan Office of Legislative Services from 1952 to 1984. As Roll Call explained in 2005, Alito Sr. had the job of periodically adjusting New Jersey’s electoral districts. After the Reynolds decision and a 1966 state constitutional convention reorganizing the state’s two legislative houses, he took a leading hand in redrawing the district lines to reflect each new Census.
That work was a study in the contrast between the clarity with which the Supreme Court announces a broad new constitutional doctrine, and the much more complex realities that attend putting the new rule into practice. In The Supreme Court and the Idea of Progress, Bickel highlighted many of the theoretical and practical problems that the Court’s sweeping new rule introduced.
But to see those problems, Samuel Jr. needed look no further than the family home. “In his bedroom at night as a boy, Judge Alito told senators, he could hear his father clicking away at a manual calculator as he struggled to redraw the state’s legislative districts with equal populations,” the New York Times reported in 2005.
The ultimate fruit of his father’s work was often challenged in New Jersey court, where Alito Sr. would testify as an expert witness. (His testimony was so precise and well done that one judge, Leonard Garth, recognized the Alito name on a clerkship application years later and promptly hired Samuel Jr. to clerk for him on the Third U.S. Circuit Court of Appeals.) One of those cases, Karcher v. Daggett, ultimately reached the U.S. Supreme Court in 1983, leaving a record of Alito Sr.’s work in the Court’s archives. The case appendix lays out page after page of the father’s analysis of various redistricting proposals, estimating to the ten-thousandth of a percentage point each proposed district’s deviation from the average population.
In short, “one person, one vote” was easier said than done. Even someone who agreed with the principle—as Alito affirmed he did in his confirmation hearing—could see that broadly stated constitutional principles risk glossing over the facts that would complicate their application in actual communities. And, as Bickel warned, sometimes those complexities, and their results, are so counter-productive that they outweigh any good the Court wished to do in the first place—perhaps not in “one person, one vote,” but certainly in other areas of the law. Justice Alito has shown himself to be uniquely well attuned to those warnings.
To be clear, the gulf between Justice Alito’s jurisprudence and that of his conservative colleagues should not be overstated. Like Chief Justice Roberts and Justices Scalia and Thomas, Alito goes about the task of constitutional interpretation by looking to “our law,” “our traditions,” and the Court’s precedents, as he explained at his confirmation hearing. Employing those tools, he more often than not finds himself in agreement with the other conservatives in constitutional disputes.
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.
“The whole scheme of our mixed constitution,” said Edmund Burke of England’s law, “is to prevent any one of its principles from being carried as far as, taken by itself, and theoretically, it would go.” Bickel urged our Supreme Court to put that lesson into practice by proceeding with restraint, never racing to displace prematurely the states and local communities as the first guardians and implementers of our rights, duties, and traditions. Schooled in those lessons, and with the firsthand benefit of his father’s work, Alito is the Court’s clearest expounder of Burkean prudence and judicial restraint. His opinions in Snyder, Brown, and Stevens may be his best recent examples of that sensibility, but they will not be his last.
Adam J. White is a lawyer in Washington, D.C. Weekly Standard intern Kate Havard assisted with research for this article.
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