W has had the presidential career of a home run hitter. The baseball players will note immediately that this is clearly a double-edged epithet: home run hitters nearly always are at the top of the league in strike outs. And there's no doubt that W has had his share of strike outs, Harriet Miers being a well-intentioned but undoubted whiff.
But Alito is something else again. Yesterday saw the release of a 1985 memo on abortion coupled with the release of his Senate questionnaire containing his essay on judicial review. The contents are simply solid gold.
Let me begin by pointing to the missing key to the Alito nomination: his commitment to Alexander Bickel's vision of judicial review. Alexander Bickel was one of Yale Law School's most famous and influential judicial theorists. There are two key points about Bickel:
1. Bickel thought that in a democracy it was fundamentally dubious to have unelected judges striking down democratically passed laws: judges lacked the authority and the wisdom to write good laws in place of legislatures. Consequently the power of judicial review should be exercised rarely and only in cases where the evidence was quite clear-cut.
2. Bickel believed that judges should proceed slowly, cautiously, and with all due restraint in whatever interventions into the political process they chose to initiate.This is crisply summed up in an interview with one of Bickel's students, James Freedman of UCBerkeley:Freedman: He was a constitutional law person, but he had views on constitutional law which were quite out of the received conventional wisdom at the time, and today, I think, sadly, are hardly regarded at all. I regard them highly, but history has, in a sense, passed by his views. Maybe they'll come back someday.
Q: What were those views?
Freedman: Well, he is very much a person of judicial restraint...Very much a person of keeping the Supreme Court out of federal courts, generally, out of decisions that ought to be made by legislative and elected officials... Part of what Bickel understood was that society had to develop organically. One of his heroes was Edmund Burke. He admired Burke's sense of society as a kind of a coral reef of beliefs and views that have been accumulated over many, many centuries. And he wanted the Supreme Court to play a role that generated widespread consent, rather than just, by edict, announce this is what the law will be, because he thought that didn't have a chance of catching on, that one needed to generate in society a general consent.
Indeed, I'm not sure whether he thought Brown against the Board [of Education], which declared segregation unconstitutional, was a wise decision in a scholarly sense, but he was very pleased with the Court saying, "We will do this, not immediately, but with all deliberate speed" -- to be done slowly, carefully, building up kind of a basis in society for acceptance of it.
In his now famous ReaganDOJ job application, Alito said that he applied to Yale Law School in part because he wanted to study with Bickel. Although Bickel was a political liberal rather than a conservative, his views on judicial restraint were attractive to young conservatives like Alito. And Bickel was not a defender of a Scalia-style commitment to originalism.
The influence of Bickel is readily apparent in Alito's newly published 1985 memo on ReaganDOJ abortion strategy. On page 17/footnote 10, Alito cites Bickel as one of four authorities rejecting the legitimacy of Roe v. Wade. It is noteworthy that three of these authorities are prominent liberal judicial theorists: Alexander Bickel himself; Archibald Cox, one of the heroes of Watergate; and John Hart Ely, a pro-choice member of Yale Law School. (I am not familiar with Epstein, the fourth individual cited). It is worth noting that none of these three is a conservative judicial radical. Alito here is functioning well within the mainstream of contemporary legal theory in rejecting Roe as simply contrary to the Constitution.
But the influence of Bickel is equally clear in Alito's recommendation for executing the ReaganDOJ policy of trying to reverse Roe. Alito, true to Bickel's belief in judicial gradualism, does not advocate seeking to reverse Roe outright. He advocates instead defending a series of common sense abortion restrictions, arguably consistent with Roe itself, that would ultimately lead to the slow dissolution of the legal force of Roe itself. Bickel's philosophy leads Alito to a policy of judicial restraint both in strategy and in tactics.
Reading Alito's memo, carefully crafted and incisively written, is a reminder of what a remarkable legal talent W has found. As an academic, I am dislike the word "brilliant", the most overused word in academia and one rarely merited by the evidence. But I am strongly inclined to describe Alito as brilliant: it is not the flashy brilliance of a Mozart, the genius as enfant terrible with all the brassy noise which that title implies; rather it is a quiet, understated brilliance, whose calm logic and soft-spoken whispers of cutting reason remind one of Saint Thomas Aquinas and the cool syllogisms of the Summa Theologica
Among the many parts of the memo that deserve careful consideration is Alito's line on page 9: "we should make clear that we disagree with Roe v Wade
and would welcome the opportunity to brief whether, and if so to what extent,
that decision should be overruled." [Boldface addedd]. In contrast to the sloppy rhetoric of clashing interest groups, reducing Roe to thumbs-up-or-thumbs-down, Alito carefully indicates that reversing Roe is not necessarily a matter of all or nothing, but may well be viewed by the court as a matter of degree.
A valuable point, and not one likely to be picked up in warring television ads and network sound bites.
On balance, the new memo probably helps Alito in the Senate. Some senators will be disturbed by the fact that memo really places beyond doubt the point that Alito thinks that Roe v Wade was wrongly decided; the memo can scarcely be dismissed as a mere expression of Alito-the-advocate. But it also show Alito's temperamental and philosophical caution: even within a ReaganDOJ committed to reversing Roe, Alito declined to counsel seeking that directly; he preferred a gradual approach running the implicit but concomitant risk that gradualism might lead in the long run to nothing but minimal modifications in the basic framework of Roe.
It is worth noting too that this places his decision in Casey in a new light as well: in Casey, Alito followed exactly the strategy of his ReaganDOJ memo--he upheld the spousal notification requirement, but declined to challenge Roe directly. Although Alito as an appeals court judge was not really in a good position to call for the reversal of Roe, it is quite probable that he found the opportunity to uphold a specific abortion restriction completely consonant with his ReaganDOJ advocacy strategy.
Alito then is likely to lead to the further erosion of Roe, and he may well vote to reverse Roe altogether if given the chance. But as a Bickel-schooled gradualist, he is unlikely do this immediately or rapidly or soon. Alito is likely to give state legislatures the benefit of the doubt as to the constitutionality of abortion restrictions. Over at ConfirmThem, there has been much speculation that Alito will prefer a "rational basis" test for interpreting Roe. This would leave Roe officially on the books while gutting Roe of most its force. In the end, Roe would remain "good law", and yet the teeth would be taken out of it, and most state abortion restrictions would be allowed to stand.
The new memos from the ReaganDOJ make this a highly probable scenario for the future Mr Justice Alito.