[Apologetics] Alito's Libertarian Streak

Mon Nov 14 11:53:40 EST 2005

Alito's Libertarian Streak 
By Ilya Somin  
Published 11/10/2005 12:06:52 AM 

 Most debate about Supreme Court nominee Samuel Alito
has focused on his propensity to vote to overrule Roe
v. Wade and the similarity between him and
conservative Justice Antonin Scalia. But despite the
superficial parallels between the two conservative,
Italian-American Catholic jurists, it is important to
recognize that Alito has a substantial libertarian
dimension to his jurisprudence as well as a
conservative one. In several key fields of law, he is
more likely than Scalia and other conservatives to be
skeptical of assertions of government power. More
important, there is much in his record that should
appeal to libertarians and -- to a lesser extent --
even left-wing liberals.

In most judicial cases, the correct result is
sufficiently clear that differences in judicial
philosophy are unlikely to affect the outcome.
However, they often do matter in cases where the issue
at stake is controversial, and traditional legal
materials do not strongly favor one side or the other.
While judges should not simply vote for whatever
outcomes because they prefer them on policy grounds, a
libertarian orientation helps sensitize jurists to the
fact that the Constitution is meant to constrain
government, not just empower electoral majorities, as
some conservatives claim. Here Alito's libertarian
streak and his differences with Scalia may have an
impact.

In sharp contrast to Scalia, Alito has often voted in
favor of the free exercise rights of minority
religious groups, even against laws that are not
deliberately intended to harm minority religions. In
Fraternal Order of Police v. City of Newark (1999), he
joined an opinion holding that Muslim police officers
had a right to grow beards (as required by their
religion) so long as the city allowed a secular
health-related exemption from its no-beard policy.
This result is in tension with Scalia's position in
the important case of Employment Division v. Smith,
where he wrote a decision holding that the
Constitution in most cases does not protect religious
groups against the effects of "neutral" laws. Given
that the FOP case involved Muslims, it is hard to
argue that Alito was just voting for the rights of a
group whose religious values he shares. In another
case, Blackhawk v. Pennsylvania, Alito authored an
opinion establishing a free exercise exemption for a
Native American religious group. While these Alito
decisions do not directly contradict Smith, they
certainly provide much stronger protections for
minority religious groups than Scalia would be likely
to favor.

ALITO ALSO DIFFERS from Scalia on the key issue of
federalism. In United States v. Rybar (1996), Alito
dissented from a case upholding a federal statute
banning machine gun possession. Alito argued that a
categorical ban on the intrastate ownership of machine
guns falls outside of Congress's power to regulate
interstate commerce. The case cannot be explained, as
some might believe, on the grounds that Alito somehow
sympathizes with private ownership of machine guns. In
the opinion, he favorably refers to state bans on
machine gun possession. Alito's position differs from
Scalia's recent opinion in Gonzales v. Raich, where
the Justice argued that the commerce power justified
upholding a federal ban on the possession of
marijuana, even for noncommercial medical purposes
permitted under state law. 

While most liberals tend to be suspicious of judicial
enforcement of limits on the federal power, they
should perhaps reconsider their opposition to this
aspect of Alito's jurisprudence. In an era when
control of Congress and the presidency will often be
in the hands of conservative Republicans,
constitutional limits on federal power benefit
liberals at least as much as conservatives. Many
liberal policies have far better political prospects
in "blue states" than in Washington. To cite a few
recent examples, Republicans have intruded on states'
traditional control over education policy, have
overridden state laws legalizing medical marijuana (as
in Raich), are trying to use federal power to
undermine gay marriage laws established at the state
level, and are currently litigating a case before the
Supreme Court that would enable the federal government
to override Oregon's decision to legalize assisted
suicide. 

Additionally, Alito has taken important libertarian
positions on free speech issues. In Saxe v. State
College Area School District (2001), he concluded that
anti-harassment rules should not be allowed to
infringe on free speech in a case where a public
school anti-harassment code was used to forbid
expression of some students' religiously based
opposition to homosexuality. He has also written
opinions protecting commercial speech, notably in Pitt
News v. Pappert, where he struck down a ban on paid
alcohol advertisements in student newspapers.
Expansive definitions of "harassment" and restrictions
on commercial speech are two of the most important
threats to free expression today. Libertarians have
every reason to welcome this aspect of Alito's
jurisprudence. Liberals, too, have reason at least
partially to embrace Alito's positions here. After
all, school anti-harassment codes can just easily be
used to stifle gay activists' criticisms of religious
conservatives as the reverse. And the latter probably
control more school boards than the former do.

Alito showed some libertarian leanings in a key
immigration case. In Fatin v. INS (1993), he wrote an
opinion holding that an Iranian woman could be
entitled to refugee status based on the Iranian
government's oppression of women and on her support
for women's rights. Fatin was not a constitutional
case, and was partially based on deference to agency
judgment. Still, Alito embraced a more expansive
vision of refugee rights than is accepted by many
conservatives, and advocated a broad definition of
asylum rights for victims of gender-based persecution.

Obviously, Alito is far from being an across-the-board
libertarian. But there is much for libertarians to
like in his record, more than in the case of Scalia.
Liberals understandably have less reason to support
Alito than libertarians do. But they should think
seriously about whether they would rather have a
conservative with a significant libertarian streak
like Alito or a pro-government conservative who will
be just as likely to overturn Roe, but less likely to
vote to restrict government power over religious
freedom, free speech, or immigration.

Ilya Somin is an assistant professor at the George
Mason University School of Law. He has written
extensively on constitutional theory and
libertarianism.  

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