Commenting on Judge Alito’s smooth persona and “dinner-table geniality,” Pierre Tristam on his website Candide’s Notebooks observes:
Not to make exaggerated claims, but it’s possible to be a crook, a hit man, a Jay Gould or [a Jack] Abramoff and still be a terrific dinner companion. . . . Alito is not a boor in person, he is a boor only in his legal philosophy. . . . It’s all there in his past decisions, his speeches, his on-the-record advocacies. . . . his infamous abortion ruling that drips of contempt for women, his imperial [view] of the presidency that drip[s] with contempt for Congress, his John Roberts-like, courtier’s draw to power, and in defense of power, at the expense of the weaker, the ordinary, the individual, for whom the Bill of Rights was written.Alito, Tristam argues, is “just mean.”
For instance, less than three years ago Alito’s Third Circuit Appeals court heard a case about a prison inmate placed indefinitely in solitary confinement, where he was not allowed books, magazines, newspapers, or pictures from home. Only religious and legal tracts. . . . The inmate, Ronald Banks, claimed his First Amendment rights were being infringed by not having newspapers to read. The warden disagreed. The ban, he reasoned in court, was not only to punish inmates, but also to keep them from using newspapers as catapults and incendiary devices. Apparently, inmates are into flinging [fecal matter] at guards with rolled up periodicals, and sometimes burning them. But if that were so, why couldn’t they use the religious or legal magazines for the same purpose? Two judges ruled in favor of Banks, calling the rules unjustified, exaggerated, unsupported by evidence of necessity, irrational. In other words: cruel, arbitrary, unusual.
Samuel Alito dissented, noting, by way of evidence that the prison rules aren’t irrational, that they apply only to “the most disruptive and dangerous .1%” of the prison population. That should be worrisome to anyone who thinks that the law is not a matter of numbers: It doesn’t matter if one person’s First Amendment rights are being flouted, as opposed to one thousand people’s. [But] to Alito, it apparently does, especially when the .1% are not ordinary humans, but “the most disruptive and dangerous” of their kind. That alone is enough to suggest that Alito sees such things as the Bill of Rights as applying in a hierarchical, subjective sort of way: He leaves it to the warden to decide how to apply them.”
The decision that Tristam discusses resembles Alito’s dissent in Planned Parenthood v Casey, which is discussed (among other places) on the blog “Lawyers, Guns, and Money.” In his dissent, Alito argued to uphold a law that required women to sign a statement notifying their husbands unless they met a fairly narrow set of exceptions. The Supreme Court subsequently voted to nullify the notification requirement.
The core of Alito's argument that the provision does not constitute an "undue burden" is his acceptance of the state's argument that the spousal notification provision would only affect a small percentage of women seeking abortions. This argument is not only illogical, it’s also wrong as a matter of law. As the plurality opinion (O’Connor et al.) noted in Casey:
The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. . . . The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.In both of these cases, Alito seems to suggest that it is fine to violate people’s constitutional rights, as long as it’s only a few people, and perhaps especially if they are members of disfavored groups.
On the other hand, there is one person to whom Alito would like to give more power: the president.
In 2000, Alito declared his belief in the “gospel” of the “unitary executive”—the theory that “the president, as commander-in-chief, is sole judge of the law, unbound by hindrances such as the Geneva conventions, and has inherent authority to subordinate independent government agencies to his fiat.”
Sidney Blumenthal, writing in the Guardian UK, suggests that Alito's belief in the “unitary executive” was perhaps the paramount credential for his nomination by Bush to the supreme court.
During the Reagan Administration, Alito promoted the use of “signing statements,” which have been adopted with the greatest gusto by George W Bush. For instance, when signing the Defense appropriation bill containing the McCain Anti-Torture Amendment, Bush issued a signing statement reserving the authority to ignore the very law to which he had just put his name—in the interests, of course, of “protecting the American people from further terrorist attacks.”
Last month, John Yoo, the former justice department official who wrote the crucial memos justifying Bush's policies on torture, detainees, and domestic surveillance without warrants, debated Notre Dame law profesor Douglass Cassel on the subject of the “unitary executive.”
Cassel asked, "If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?"
"No treaty," Yoo replied.
Cassel prompted, "Also no law by Congress. That is what you wrote in the August 2002 memo."
Yoo said, "I think it depends on why the president thinks he needs to do that.”
I think it’s safe to assume Bush would again cite his need to “protect the American people.”
John Nichols, on commondreams.org, quotes James Madison, who drafted the Constitution and later became the fourth president, and who said,
Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. . . In war . . . the discretionary power of the executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people. . . .War is in fact the true nurse of executive aggrandizement . . . .The same malignant aspect . . .may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war. . . .No nation can preserve its freedom in the midst of continual warfare.
