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