In a recent piece in The Weekly Standard, Adam J. White argues that Samuel Alito is a Burkean conservative. By looking at Alito’s reasoning and not simply his voting record, White concludes that
Justice Alito is uniquely attuned to the space that the Constitution preserves for local communities to defend the vulnerable and to protect traditional values. In these three new opinions, more than any others, he has emerged as the Court’s Burkean justice.
A justice interested in carving out space for local communities to govern themselves is a refreshing change from those who imagine that one size fits all and that nine people in black robes know what is best for all of us.
White examines several cases including Snyder v. Phelps (the God hates fags preacher) and the recent Brown v. Entertainment Merchants Association that dealt with marketing violent video games to children. In his majority opinion Justice Scalia compared the video games to violent children’s stories that have been common fare for centuries. Alito is more circumspect:
We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.
In the view of the Court, all those concerned about the effects of violent video games—federal and state legislators, educators, social scientists, and parents—are unduly fearful, for violent video games really present no serious problem. . . . The Court is sure of this; I am not.
That is the refreshing voice of modesty. We could use a lot more of that.
I’ve written before that, though Alito and I probably share relatively few political preferences, he has, a few times, impressed me as the only justice on the court who is genuinely looking at cases with concerns about family, community, and dignity foremost in his mind. Hence his solitary dissent in a case that would have legitimated a father suing the odious Fred Phelps for profaning his son’s funeral (Snyder v. Phelps); hence his lonely insistence that the First Amendment is no excuse for casually filling the internet with gross depictions of animal cruelty (United States v. Stevens). It actually really disappoints me that, for Brown v. Entertainment Merchants Association, Alito was not capable of seeing the moral truth of the matter as regards the proper place of minor children, as both Thomas and Breyer did in their dissents.
I have not had high hopes for Justice Alito, but this essay points to the possibility that he will make a unique positive contribution to the court’s jurisprudence. I was disappointed by his highly technical dissent in a case involving an obviously reformed man in Iowa sentenced to probation without prison time for a drug offense years in his past — the majority overturned the Eighth Circuit’s insistence that a sentence outside the federal guidelines was “presumptively unreasonable.”
I did find Alito’s dissent in Christian Legal Society v. Martinez to be far superior to the opinion of the court. There has yet to be a justice who was never right, or never wrong, from any conceivable point of view. Breyer was so wrong on Apprendi, and Scalia so right. Stevens was so wrong on Boy Scouts of America v. Dale. Alito is free from any political pressures now, he has a life-time appointment, and hopefully will grow into the role.
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