As Scalia Falters, Will Alito Fill the Void on the Right?

Uncle Nino's "originalism" looks back, because the past is good; young Sam Alito looks forward, out of fear the future will be bad.

large (2).jpgJonathan Ernst/Reuters

In W.H. Auden's famous poem "Law Like Love," each order of life imagines law in terms of its own concerns. One of the great divides is generational:

Law is the wisdom of the old,

The impotent grandfathers feebly scold;

The grandchildren put out a treble tongue,

Law is the senses of the young.

Not long ago, I wrote a column suggesting that this year's term of the Supreme Court -- which opens today -- may mark the end of Justice Scalia's reign as dominant ideological figure on the Court's right wing. If that is correct, who could take his place? Well, there's one candidate running, and his name is Sam Alito.

Before we dismiss his claim, consider that -- as Neal Katyal, former acting solicitor general and Supreme Court litigator, recently pointed out -- the very first case of this year's term, Kiobel v. Royal Dutch Petroleum Co.-- is being re-argued largely because of one particularly sharp question Alito posed at oral argument last term. The case pits a group of Nigerian nationals against a Dutch corporation whom the plaintiffs accuse of aiding and abetting human-rights abuses in Nigeria. When the parties arose to argue, the question presented was whether corporations as a class possessed blanket immunity to suit under the Alien Tort Statute. But Alito's first comment from the bench was "the question is whether there's any other country in the world where these plaintiffs could have brought these claims against the Respondents." Later, he asked, "what business does a case like that have in the courts of the United States?" After argument, the case was rescheduled. Today the Court will hear arguments about Alito's underlying question -- whether the Alien Tort Statute permits suits against any defendant "for violations of the law of nations occurring within the territory of a sovereign other than the United States."

When George W. Bush nominated Alito in 2006, even his allies nicknamed him "Scalito," as if the Italian-American justice was sure to be a kind of federalist Mini-me. Superficially, Scalia and Alito seemed to be similar -- both natives of the New York region, both products of Catholic families, both former executive-branch lawyers for Republican presidents, and, most important, both holders of unimpeachable conservative credentials.

But Alito has become a kind of un-Scalia. Scalia is an "originalist"; in deciding constitutional cases, he reads the Big History Book and tells the rest of us the "original public meaning" of the Constitution. Originalism, even though it flourishes in the twenty-first century academe, was originally a political movement, invented during the Reagan years as a club to berate "activist" judges who voted for reproductive rights or limits on the death penalty. It has succeeded so well that it is now entering the final stage of Hollywood Fame. (1. What's Originalism? 2. Get me an Originalist. 3. Get me an Originalist type. 4. What's Originalism?) And "Scalito" is not only not Mini-me, he's not an originalist at all.

During argument in Brown v. Entertainment Merchants Association (the "violent video games" case), Alito interrupted a Scalia question to say, "I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?" In United States v. Jones, in which the issue was whether placing a GPS tracking device on a suspect's car is a "search" within the meaning of the Fourteenth Amendment, Alito wrote separately to ridicule Scalia's turn to the common law of the Georgian era to decide a case about computerized earth-satellite data. "Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach's owner?" he wrote.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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