Judge Alito: Massager of Precedents

"Judge Samuel Alito may agree on many issues with conservative Supreme Court Justices Antonin Scalia and Clarence Thomas. But President Bush's high-court nominee often has taken a different path toward similar legal conclusions, one that is more subtle and less dismissive of precedent."

"Since the Nixon and Reagan administrations, conservatives have yearned to overturn many of the Warren Court's equal-protection precedents. Nothing in the Constitution barred laws to 'discourage formation of illicit family relationships,' Justice William Rehnquist wrote in dissenting from a 1972 ruling that found it unconstitutional to exclude illegitimate children from collecting workman's compensation for their father's death.

"Judge Alito approached things differently. In his 23-page article, 'Equal Protection and Classifications Based on Family Membership,' (PDF) he offered conservatives a novel way to read the jurisprudence as consistent with 'the state's interest in promoting the traditional family.' The approach appeared to respect the precedents while denying them the impact that some legal authorities—including, perhaps, the justices themselves—expected."

"Judge Alito 'massages the precedents to make them say what he wants them to say. That's a very different aesthetic than Scalia,' says Prof. Robert Post of Yale Law School, a former clerk to the liberal Justice William Brennan. Judge Alito's 'sensibility is not to beat up the Warren Court as illegitimate, but to get what he wants out of the Warren Court.'

"Similarly, critics say, Judge Alito's recent opinions have asserted an allegiance to precedent—even when reaching a more conservative outcome than the Supreme Court later would accept. That approach could lead to readings of liberal precedents, such as the 1973 Roe v. Wade opinion upholding abortion rights, that diminish their scope without explicitly overruling them." ...

Samuel Alito Profiles:
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