We already know some of the dynamics of President Bush's nomination of Judge Samuel Alito: the president's low approval ratings, driven lower by defections from his base during the Harriet Miers episode, and his need to recapture some political ground by shifting attention from corruption and incompetence to a Supreme Court nominee who can't be challenged as an incompetent crony.
One element in the political dynamics, though, may have been overlooked. The president is taking advantage of what might be merely a moment of unified government to consolidate conservative control of the Supreme Court. Facing the possibility (though hardly a certainty) of a Democratic majority in the Senate after next year's elections, and even of a Democratic president after 2008, Bush is following the tradition established by John Adams in 1800: If you think you might lose control of the political branches, try to plant your allies on the Supreme Court so they can as check the excesses (as you see them) of your political opponents.
Alito's nomination seems likely to put this element at the center of the confirmation discussion. Nobody's going to claim that he lacks the basic qualifications of a Supreme Court justice, and the Miers episode made the focus on a nominee's judicial philosophy inevitable -- though I'm sure we'll see some conservatives turning on a dime to assert that the debate should be exclusively about competence and qualifications, not judicial philosophy.
Alito is a down-the-line judicial conservative. It's not for nothing that he's acquired the sobriquet “Scalito.” Here, too, we're already seeing some scrambling by conservatives to deny that Samuel Alito is an Antonin Scalia clone, mostly taking the form of disparaging the latter as acerbic and personally abrasive in contrast to the former's smoothness -- overlooking the fact that, on a personal level, Scalia is entirely affable. (Indeed, although it's been forgotten, when Scalia was nominated his supporters and opponents agreed that his ability to get along with everyone might make him a unifying force on a divided Court. Sound familiar?)
But, looking at Judge Alito's record, it's hard to find anything a conservative would disagree with. He interprets the free-exercise clause expansively because it protects the rights of religious dissidents, which is the self-characterization of many religious conservatives in what they see as a secular society. He interprets the establishment clause restrictively because it keeps religious conservatives from enacting their preferred agenda when they happen to control a school board or city council. And he obviously disagrees with Roe v. Wade, having voted to uphold the one provision of the Pennsylvania abortion statute that the Supreme Court struck down in the Planned Parenthood v. Casey decision of 1992.
Worth emphasizing are two cases in which Judge Alito was more conservative than the Supreme Court's conservatives. In one, he found that the Constitution precluded Congress from requiring state and local governments to provide family medical leave. The Supreme Court, in a decision written by Chief Justice William Rehnquist, upheld the federal statute. Alito's defenders are going to say that the case he decided presented a slightly different question from the one presented in Rehnquist's case. That's true. But cases are almost always distinguishable, and the tenor of the chief justice's opinion is quite different from Alito's holding.
Even more striking, Alito, almost alone among all federal judges, would have held that Congress couldn't use its power to regulate interstate commerce in a way that would make it a crime for a person to possess a machine gun. He took the Supreme Court's decisions restricting that power and ran with them past where anyone else had -- or would. Last year's case involving medical marijuana makes it clear that the Supreme Court doesn't have nearly as restrictive a view of Congress' powers -- and, conversely, as expansive a view of the Supreme Court's powers -- as Judge Alito does. And, in the medical marijuana decision, who wrote an opinion explaining why Congress could prohibit the private possession and use of marijuana? Justice Antonin Scalia.
More conservative than Rehnquist and Scalia, then. A Roberts Court with Samuel Alito would be under consolidated conservative control. What then? If we continue to have unified government under Republican control, not much. The Supreme Court would do some of the jobs that, mostly for reasons of time, Congress can't get around to. It might invalidate some statutes adopted by state legislatures controlled by Democrats instead of using Congress' power to preempt those statutes. It might eventually overturn Roe v. Wade, although the political implications of doing so are likely to hurt Republicans (and so a conservative Court might not take that step). Basically, the Roberts Court would collaborate with the Republican political branches to advance the Republicans' substantive agenda, just as the Warren Court collaborated with the Democratic political branches.
A return to unified Democratic government is so unlikely as not to be worth spending time on. If we get divided government again, the Roberts Court could be free to pursue a strongly conservative substantive agenda, confident that its allies in Congress would have enough power to ensure that the Court's decisions would stick -- and confident that its opponents would fulminate but not be in a position to mount a full-scale attack on the Court. Or, and I think this is more likely, the Roberts Court would, like the Rehnquist Court, drift gradually to the right, changing constitutional law incrementally while awaiting the return of unified Republican government.
Over the past few weeks I've quoted a line from the conclusion of the film Dead Again. The three main characters are together in a small room, each (as I recall the scene) pointing a gun at another. One of the characters says, “I, for one, am very interested in what happens next.” Me, too.
Mark Tushnet is the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law.
