Cass Sunstein, a University of Chicago law professor, has noted that Alito follows the law when it's clear, but he almost always tilts toward his conservative predilections when the law is less settled.
Exactly. Andrew Sullivan recently denounced Emily Bazelon's statement that
In almost none of these cases, though, does Alito seem like a little-guy champion. He seems like a judge who dutifully follows the law. When the law instructs him to find for the criminal defendant or the plaintiff, he does so. When you get to the Supreme Court, though, you get to rip up the instruction manual and rewrite it. There's very little in Alito's record that suggests his revisions will favor the little guy. And a lot that suggests they won't.
Just so we're clear: Alito's record as a judge indicates that he only rules for the little guy when the law dictates that he should. And this is really bad, because we need Supreme Court judges who are willing to "rip up the instruction manual" (I believe it's known as "active liberty" jurisprudence these days, but maybe Bazelon didn't get the memo) to help the little guy, or at least the little guy as defined by Ted Kennedy. And the way we should pick them is by nominating lower court judges who have . . . torn up the instruction manual on the lower courts?
Sullivan is dead wrong. First - it is conservative nonsense that only purportedly-liberal judges "tear up the instruction manual." There are countless examples of conservative judges going against settled precedent - just as there are with liberal justices. Judicial activism crosses the aisles.
More importantly, what Sullivan misses, with his cramped view of individual liberty, is that the Constitution does protect the person. The rights guaranteed by it, unlike, for example, the Constitution of Canada, inhere ONLY to the individual. There is no reasonable attorney or jurist or lawmaker who would dispute the fact that when a lower court comes up against settled precedent of a court superior to it, it must follow it. But the point is that where precedent is unclear, or where the law is murky, it should err on the side of individual liberty, of privacy, because that is the common thread of the Constitution. Look at the Amendments: The First guarantees the rights of the individual to speak and to believe. The Third guarantees that the individual cannot be forced to quarter troops. The Fourth, Fifth, and Sixth all guarantee the individual's rights in criminal proceedings, along with the glorious Eighth.
(I will point out - as a second year attorney, I see countless examples of unsettled law, even on a Constitutional level. The law is just not clear on so many things.)
So, Sullivan is right - follow the rules. I doubt Bazelon or Dionne would disagree. But where they part ways is in the grey area (and we all know Republicans don't believe in grey). Bazelon and Dionne would support the individual. Sullivan and Alito would support the state.
And when the State is arresting you and holding you without cause, and spying on you without a warrant, I'd far rather have the courts on my side.