Commentary

Alito’s Libertarian Streak

This article appeared on Spectator.org on November 10, 2005.

Most debate about Supreme Court nominee Samuel Alito has focused on his propensity to vote to overrule Roe v. Wade and the similarity between him and conservative Justice Antonin Scalia. But despite the superficial parallels between the two conservative, Italian-American Catholic jurists, it is important to recognize that Alito has a substantial libertarian dimension to his jurisprudence as well as a conservative one. In several key fields of law, he is more likely than Scalia and other conservatives to be skeptical of assertions of government power. More important, there is much in his record that should appeal to libertarians and — to a lesser extent — even left-wing liberals.

In most judicial cases, the correct result is sufficiently clear that differences in judicial philosophy are unlikely to affect the outcome. However, they often do matter in cases where the issue at stake is controversial, and traditional legal materials do not strongly favor one side or the other. While judges should not simply vote for whatever outcomes because they prefer them on policy grounds, a libertarian orientation helps sensitize jurists to the fact that the Constitution is meant to constrain government, not just empower electoral majorities, as some conservatives claim. Here Alito’s libertarian streak and his differences with Scalia may have an impact.

In sharp contrast to Scalia, Alito has often voted in favor of the free exercise rights of minority religious groups, even against laws that are not deliberately intended to harm minority religions. In Fraternal Order of Police v. City of Newark (1999), he joined an opinion holding that Muslim police officers had a right to grow beards (as required by their religion) so long as the city allowed a secular health-related exemption from its no-beard policy. This result is in tension with Scalia’s position in the important case of Employment Division v. Smith, where he wrote a decision holding that the Constitution in most cases does not protect religious groups against the effects of “neutral” laws. Given that the FOP case involved Muslims, it is hard to argue that Alito was just voting for the rights of a group whose religious values he shares. In another case, Blackhawk v. Pennsylvania, Alito authored an opinion establishing a free exercise exemption for a Native American religious group. While these Alito decisions do not directly contradict Smith, they certainly provide much stronger protections for minority religious groups than Scalia would be likely to favor.

Alito also differs from Scalia on the key issue of federalism. In United States v. Rybar (1996), Alito dissented from a case upholding a federal statute banning machine gun possession. Alito argued that a categorical ban on the intrastate ownership of machine guns falls outside of Congress’s power to regulate interstate commerce. The case cannot be explained, as some might believe, on the grounds that Alito somehow sympathizes with private ownership of machine guns. In the opinion, he favorably refers to state bans on machine gun possession. Alito’s position differs from Scalia’s recent opinion in Gonzales v. Raich, where the Justice argued that the commerce power justified upholding a federal ban on the possession of marijuana, even for noncommercial medical purposes permitted under state law.

While most liberals tend to be suspicious of judicial enforcement of limits on the federal power, they should perhaps reconsider their opposition to this aspect of Alito’s jurisprudence. In an era when control of Congress and the presidency will often be in the hands of conservative Republicans, constitutional limits on federal power benefit liberals at least as much as conservatives. Many liberal policies have far better political prospects in “blue states” than in Washington. To cite a few recent examples, Republicans have intruded on states’ traditional control over education policy, have overridden state laws legalizing medical marijuana (as in Raich), are trying to use federal power to undermine gay marriage laws established at the state level, and are currently litigating a case before the Supreme Court that would enable the federal government to override Oregon’s decision to legalize assisted suicide.

Additionally, Alito has taken important libertarian positions on free speech issues. In Saxe v. State College Area School District (2001), he concluded that anti-harassment rules should not be allowed to infringe on free speech in a case where a public school anti-harassment code was used to forbid expression of some students’ religiously based opposition to homosexuality. He has also written opinions protecting commercial speech, notably in Pitt News v. Pappert, where he struck down a ban on paid alcohol advertisements in student newspapers. Expansive definitions of “harassment” and restrictions on commercial speech are two of the most important threats to free expression today. Libertarians have every reason to welcome this aspect of Alito’s jurisprudence. Liberals, too, have reason at least partially to embrace Alito’s positions here. After all, school anti-harassment codes can just easily be used to stifle gay activists’ criticisms of religious conservatives as the reverse. And the latter probably control more school boards than the former do.

Alito showed some libertarian leanings in a key immigration case. In Fatin v. INS (1993), he wrote an opinion holding that an Iranian woman could be entitled to refugee status based on the Iranian government’s oppression of women and on her support for women’s rights. Fatin was not a constitutional case, and was partially based on deference to agency judgment. Still, Alito embraced a more expansive vision of refugee rights than is accepted by many conservatives, and advocated a broad definition of asylum rights for victims of gender-based persecution.

Obviously, Alito is far from being an across-the-board libertarian. But there is much for libertarians to like in his record, more than in the case of Scalia. Liberals understandably have less reason to support Alito than libertarians do. But they should think seriously about whether they would rather have a conservative with a significant libertarian streak like Alito or a pro-government conservative who will be just as likely to overturn Roe, but less likely to vote to restrict government power over religious freedom, free speech, or immigration.

Ilya Somin is an assistant professor at the George Mason University School of Law.