Judge Samuel Alito isn’t what he claims to be. And he’s a lot more of a threat than the talking class suggests.
Alito is more than a threat to women’s right to choose. He’s the standard bearer for the new reaction, seeking a return to states’ rights and corporate rights over the rights of Congress.
Alito’s record as a judge doesn’t show deference to the legislature, the branch of government elected by the people. It reveals instead a judge quite willing to use his position on the bench to enforce his own views. Alito is a right-wing judicial activist masquerading as a man of judicial restraint.
His activism is neither whimsical nor random. He has a consistent philosophy. He is a champion of states’ rights over the national government. He is a champion of corporate rights over the rights of the people’s representatives to regulate corporations for the common good.
The far right of American politics is proclaiming that the real Constitution has been “in exile” since the 1930s. They would return the nation to the era of the Gilded Age, when unions were outlawed as a restraint on trade, when corporate regulation was routinely struck down as exceeding congressional power, and when states’ rights were exalted.
Alito is in that line. He voted to strike down a law passed by Congress restricting the transfer and possession of machineguns at gun shows. He argued that the Congress didn’t have the power to regulate the sale of machineguns, without detailed findings – to be reviewed by the courts for adequacy – that there was a connection between the regulation of the transfer of machineguns and interstate commerce. I guess the judge assumed that terrorists with machineguns would just stay in one state.
When it came to states’ rights, there was no more fierce advocate than the late Chief Justice William Rehnquist. Yet Alito makes Rehnquist look like a moderate. Alito ruled that the Congress had no right to require state governments to comply with the Family and Medical Leave Act for their employees. His ruling overturned by the Supreme Court in an opinion written by none other than Chief Justice Rehnquist.
Similarly, Alito has used his position repeatedly to constrict congressional regulation of corporations – and has been willing to gut protections against gender and racial discrimination in hiring.
This is a judge who rejected an African-American defendant challenging a verdict by an all-white jury purged of all black jurors because of their race. Alito mocked statistical evidence that showed the prosecutions’ systematic exclusion of African-Americans from juries, suggesting it was as meaningless as the fact that a disproportionate number of presidents had been left-handed.
Any judge who could write that is dangerously blind to the history of this country, and the numb to the responsibility of the Court.