Post Date: January 13, 2006
The following essay by Professor Alan Dershowitz, What Kind Of Justice Will Alito Be?, appeared in Forbes on January 13, 2006.
Almost all justices vote almost all of the time in accordance with their own personal, political and religious views. That is the reality, especially on the Supreme Court, where precedent is not as binding, and where cases are less determined by specific facts than by broad principles.
Though presidents, senators and judicial nominees loudly proclaim that justices should merely apply "the law" in a neutral manner, every experienced lawyer understands that the best predictors of a justice's actual votes are his or her personal, political and religious predilections. Any lawyer who ignores this reality is doomed to failure in a profession in which a lawyer's primary job--as Justice Oliver Wendell Holmes Jr. once put it--is "the prophecies of what the courts will do in fact, and nothing more pretentious." That is why good lawyers check the biographical material about judges even before they read their cases. They rarely research the testimony of the judge at his or her confirmation hearing.
It was biography rather than precedent that determined the entirely predictable votes of the justices in Bush v. Gore (the 2000 presidential election case), Roe v. Wade (the abortion case), Lawrence v. Texas (the gay rights case) and so many other critical cases decided by the High Court. In Bush v. Gore, when the lawyers were seeking to persuade "swing votes," no one wasted even a minute reading Chief Justice Rehnquist's past decision, which clearly favored the Gore legal position. Everyone knew that Rehnquist would cast his vote for Bush, regardless of the facts or the law. The same was true for several other justices as well.
On many occasions, the impact of biography is overt and conscious. Other times it is subtle and unconscious. But it is always there. On rare occasions, justices transcend their background and render decisions in conflict with what we might expect from their biography, but that is the exception rather than the rule. Sometimes presidents fail to probe their nominees' biographies with sufficient depth. President Eisenhower mistakenly believed he was appointing reliable conservatives when he nominated Republican Earl Warren and Catholic William Brennan, but a more probing look into their biographies would have alerted him to their liberal tendencies.
To ignore biography is to blink reality. Even Judge Alito acknowledged in his testimony that when a case involving discrimination comes before him, he thinks of his relatives who suffered anti-Italian discrimination. And when a case comes before him involving children, he cannot help thinking about his own kids. How can he then be so certain that his personal views play absolutely no role in his judicial decisions? The president who nominated him certainly expects his conservative personal views to influence his judicial decisions. What then can we expect from a Justice Alito were he to be confirmed?
The broad outline is obvious for all to see. Justice Alito will generally favor big government, big corporations, big religions and big majorities over ordinary citizens, consumers, minorities, religious dissidents, immigrants, persons suspected of crime and disenfranchised voters. He will have a narrow view of civil rights, women's rights, disability rights and immigrants' rights, and he will have a broad view of presidential power and states' rights (except in cases like Bush v. Gore). His membership in the Princeton Alumni group that opposed the admission of women and affirmative action for minorities suggests that he will be unsympathetic to affirmative action.
Alito would, I believe, have voted to stop the vote count and hand the 2000 presidential election to George W. Bush, if he had been on the High Court when Bush v. Gore was decided. (If any senator doubts this, let them ask him what he said to friends and associates upon hearing of the High Court's decision.) I also believe that he would probably have voted the opposite way had the names of the litigants been reversed. He would not necessarily have made a conscious decision to favor the man for whom he voted in the election, but he surely would have been predisposed in that direction. He will try to implement the agenda of the Federalist Society, the conservative group in which he has been active for years.
I do not believe that he will vote to overrule Roe v. Wade, if his would be the deciding vote. Were a Republican court ever to reverse a woman's right to choose, the Republican Party would suffer greatly at the polls--and the justices know this. If he could safely vote in dissent to overrule Roe, he might well do so, because as his mother has said, he strongly opposes abortion as a personal matter.
Most justices of the Supreme Court are essentially politicians in robes, especially when it comes to the large political issues that attract the most public attention. In smaller cases that do not involve agenda issues, the justices tend to be less political and more judicial.
Judge Alito is a good politician, and he seems like a nice guy. But his views are not very different from some of those advocated by Judge Robert Bork. He is "Bork-nice"--a really decent man with high qualifications, an inspiring life story and a reactionary worldview. The question for those senators who believe--as I do--that a Justice Alito would set back the rights and liberties of the most vulnerable Americans, is whether to confirm a qualified nominee who will not be good for the country.
Alan Dershowitz is a professor of law at Harvard. His latest book is "The Case For Peace: How the Arab-Israeli Conflict Can Be Resolved."