Judge Alito Doesn’t Show Congress Enough Deference

Posted November 1, 2005 at 2:19pm

Let me start today by writing about the nomination of Samuel Alito to the Supreme Court. To borrow and adapt a phrase, I know John Roberts; John Roberts is a friend (all right, an acquaintance) of mine. And Sam Alito is no John Roberts. [IMGCAP(1)]

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito’s dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We’re talking machine guns.


Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito’s colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce — and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the “Constitution in Exile.” Whatever it is, it’s not judicial restraint.


Roberts is a very conservative guy, and a strict constructionist — one who means it. He understands that Congress is the branch the framers set up in Article I, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article II, which created the executive branch, and almost four times as long as Article III, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively.


Too many judges, including some of the brightest, talk a good game of judicial restraint, but somehow find that deference is due Congress only when it passes laws they like. The smart ones find some rationale for overturning laws they don’t like, preserving a patina of consistency, but not more than that. (A few, including Clarence Thomas, don’t even pay lip service to the principle when voting to overturn legislative acts.)


Many of these judges do give substantial deference to the executive branch, perhaps because they have served in the executive branch. That is true of Thomas and Antonin Scalia, as it was of William Rehnquist, and is true of Alito as well (he served as U.S. attorney in New Jersey). It is true, of course, of Roberts too, but he has at least demonstrated deference to Congress. This is one of the reasons I have advocated putting more people with legislative experience on the court. It is a shame that we are losing Sandra Day O’Connor, our only justice who was ever elected to office, and have only one remaining, Stephen Breyer, who has worked in Congress.


President Bush had alternatives — strong conservatives who understand the role of the courts and the role of Congress. Judge Michael McConnell is one. It is a shame that the president didn’t choose one of these men or women. Whatever else it does with Judge Alito at the confirmation hearings, the Senate needs to hold his feet to the fire on this larger issue of deference to the legislative branch.


Now for a thought on campaign finance reform and the constant efforts by conniving sore losers to slip in proposals that would undercut and overturn the Bipartisan Campaign Reform Act. Hardly a week goes by without some kind of effort, either by legislating on an appropriations bill or trying to slip something by in the dead of night or by misrepresenting its content. The latter is the case with H.R. 1606, which Rep. Jeb Hensarling (R-Texas) is offering as a bill to protect the Internet from regulation.


It would do nothing of the sort. As Trevor Potter noted in a Guest Observer in Roll Call on Oct. 24, Web loggers don’t need this bill. They have nothing to fear from existing law, nor is there any threat of action that would put them in jeopardy. The issue is advertising. Any sentient user of the Internet can see how advertising of every variety is booming and ubiquitous. Commercial advertisers are increasingly putting their budgets into different forms of ads, from banners to video to prominent placement on sites like Google. It is very likely that candidates will follow.


Hensarling’s bill would give a blanket exemption for all activity on the Internet from campaign finance regulation. This would mean two things: Soft money would pour into Internet advertising, and federal candidates would once again coordinate actively with outside groups, including corporations, unions and fat-cat individuals to get soft money back into the game.


State parties would be able to spend unlimited soft money for Internet ad campaigns. No matter how many times BCRA opponents shout it, reform has not destroyed our political parties, stifled robust debate or allowed 527s to dominate the discourse. In fact, the parties are thriving under the campaign finance limits, raising tons of hard money to replace (and then some) the hard and soft money that existed under the old system. The old, corrupting process of officeholders trading soft money for access has been eliminated. Hensarling would bring it all back, in the guise of something innocuous. The House should not be fooled by these shenanigans.


Norman Ornstein is a resident scholar at the American Enterprise Institute.