November 10, 2005

Is Alito libertarian and, if so, what should liberals think about that?

Lawprof Ilya Somin identifies a "libertarian streak" in Samuel Alito. What is the evidence?

1. Two Free Exercise cases -- which I called attention to here. Alito was quick to see a nonneutral policy and to invoke strict scrutiny protection for plaintiffs who asserted the government burdened their exercise of religion.

2. Alito's dissenting opinion in Rybar, a Commerce Clause case, which would have limited federal power with respect to gun possession. Somin's point is not that Alito cares about gun rights. (The opinion says nothing about the states' power to ban gun possession.) He's guessing that Alito would leave more room for states to protect liberty interests than the majority of justices who recently decided that federal law trumped state law in the medical marijuana case, Raich. Notably, Scalia was in the majority in Raich, and Somin's point is that Alito is a stronger supporter of state autonomy than Scalia. There are two problems with reading Rybar as showing a "libertarian streak." 1. States can also use their autonomy to restrict liberty (unless rights are enforced to limit their anti-libertarian policy experiments), and 2. Alito's Rybar dissent looks like the work of a lower court judge who is mainly trying to apply a new Supreme Court precedent correctly, so we can't extrapolate that he would behave the same when he is a Supreme Court judge. But here's Somin's point:
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.
For the last 20 years, I've been making the argument that liberals should see the good in protecting state autonomy. What I find is that they worry so much about the harm states might do with autonomy that they won't take the risk in the hope of getting benefits. Part of this mindset is that they still believe they can get the policies they want from Congress and that the power to impose that policy on all of the states is too good to sacrifice. I haven't thought so much about whether libertarians as opposed to liberals should find state autonomy appealing. Maybe they have a different mindset and have different predictions about what states would do with more autonomy.

3. Free speech:
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.
4. Immigration:
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.
How should liberals react to the Alito nomination? Bush has the appointment power and will pick from the pool of those he imagines will be conservative on the Supreme Court. Given the range of possibilities, what should liberals prefer? Perhaps they should prefer the most ambiguous sort of "stealth" nominee with the hope that he or she will turn out to be a liberal on the Court. (Hence, the lack of opposition to Harriet Miers.) But Somin makes the argument that liberals should find the libertarian sort of conservative at least somewhat appealing:
[T]hey 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.


Sloanasaurus said...

I don't think a New Dealer would find a libertarian appealing.

Liberal democrats - those who think the government should do a lot more things would not want a libertarian on the court.

Nick said...

There is a simple reason why every person should find state autonomy pleasing... and its because each individual as more say.

Just look at the numbers... How many people does the average Congressman represent vs. the average number of people that a state representative represents.

You have more power in a State government.

Fiona de Londras said...

I think, and have been saying for a while now, that Alito has strong liberal tendancies - not that he's left wing but that he is not a right-wing idealogue and that his cases (especially on religious minority rights and on gender and refugee law) show this. As a liberal I take comfort (were I in America I don't know whether that would still be the case). Wary as I am of self-promotion if anyone is interested I wrote a piece on this for Thought Mechanics recently:

Maxwell said...

I'm a liberal, but quite libertarian on social issues. Given that the president is a conservative and will nominate a conservative, I would much rather have a libertarian conservative then a religious conservative or a government-power conservative.

To confine "libertarian" to big government/economic issues as some commenters seem to do here is unnecessarily narrowing, I think.