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.
