Alito: A Bork in Sheep's Clothing ?

JUSTICE:

Well, I had intended this use this entry to excoriate the Executive-in-Chief over his State of the Union speech from this week, but a (very wise) comment led me to a different intellectual examination. Robin Bisha, who writes the very heartfelt Woman Hollerin', expressed concern that Alito and Bork might be 'cut from the same cloth', as it were, and shared my dismay that whereas twenty years ago, a mighty groundswell of opposition led to his nomination's rejection, today we saw but a relative whimper of real and sustained opposition.

Now, it has been a LOOOOoooooonnnnnnnngggggg time since my Constitutional Law class, and I really haven't spent the kind of quality time analyzing Bork's writings, opinions (of which there are MANY since his rejection - then again a highly paid cush job at the American Enterprise Institute does grant you lots and lots of free time to wax rhetorically) to do a comprehensive analysis, but while Alito's eventual jurisprudence will be undoubtedly conservative, I don't think that he's Bork-ian.

Bork, as memory serves (supplanted by a little quick Googling), takes not just a conservative view of the Constitution, but rather an ORIGINALIST view. Bork has ZERO respect for the precedence value of prior decisions from courts that he feel were based on faulty principles or where the Court input itself into areas where he felt that the Constitution's founders couldn't have possibly envisioned. Absent constitutional revision, argued the bearded Bork, the Court shouldn't have done MANY of the things we have lauded the Supreme Court for deciding.

Alito, by comparison, seems to be more of a STRICT CONSTRUCTIONALIST. Using a geometry analogy, it might be fair to say that all Originalists are Strict Constructionalists, but not all Strict Constructionalists are Originalists.

One of the largest areas of difference is, if I recall correctly, between them is whether the 14th Amendment (especially the Due Process and Equal Protection Clauses) act to apply federal constitutional protections and standards to the individual States. Bork (again, working from dim memory here) believes that the Court frequently uses the 14th Amendment as a device to reach into State action that he feels lacks a constitutional dimension, whereas a similar principle seems to lacking in Alito's viewpoints. Granted, Alito is staunchly conservative, but at least has paid lip service (in the hearings) to respecting the power and principles of the current Court.

Only time will tell, as in most things. I was somewhat heartened by Alito's first vote as a sitting justice. For those of you who missed it, Alito actually broke with the 'conservative wing' of the Court, and voted to deny lifting a stay of execution. At issue in the Taylor case was whether the State's manner of execution was cruel and unusual. Pay attention kiddies, whether the manner of execution was cruel and unusual, not whether the execution itself was cruel and unusual. Scalia, Thomas, and newly installed Chief Justice Roberts (who is the one I'm more worried about), said that the stay of execution should be lifted. The majority of judges, including Alito, decided that the stay should remain in effect while the lower court continues to consider this issue.

While the order continuing the stay lacks any reasoning or explanation (copy of order available at http://www.supremecourtus.gov/orders/courtorders/020106pzr.pdf ) I would bet next year's bar dues that Alito's vote was somewhat predicated on his belief that this question is not yet resolved to a sufficient level of constitutional certainty. As some of you may be aware, a case from Florida (whose name and citation escapes me for the moment) has been accepted by the Supreme Court for review later this term. While the issue remains unresolved, it seems that a stay of execution is the prudent course of action.

Look for more comment on this and other death penalty issues as the Court considers the case.

Again, thanks Robin for leading me to this topic.

Later . . . .