Reviewing Alito's Dissents

Linda Wertheimer talks to University of Chicago Professor Cass Sunstein about Supreme Court nominee Samuel Alito's judicial philosophy. Much can be learned about Alito by studying the cases in which he wrote dissenting opinions from the court's majority during his 15 years on the federal appeals court.

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LINDA WERTHEIMER, host:

Senators considering the president's nomination of Judge Alito to the Supreme Court face a mountain of material amassed during his 15 years as a judge on the federal court of appeals, but we assume they'll find some of the most revealing reading in his 65 dissents, separate opinions he wrote when he disagreed with the majority on the court. Cass Sunstein, professor of law and political science at the University of Chicago, has read them all, and he joins us from the studio there.

Welcome.

Professor CASS SUNSTEIN (University of Chicago): Thank you so much.

WERTHEIMER: So how would you characterize his dissents generally? Is this a radical judge outside the conservative mainstream, as some of the Democrats have suggested?

Prof. SUNSTEIN: Well, I don't like those terms, but it is certainly true that he is a consistent conservative whose dissenting opinions show an unmistakable pattern; that is, they dissent almost always from the right, and it's really quite revealing.

WERTHEIMER: Is there a pattern to the cases on which he dissents?

Prof. SUNSTEIN: I think so. These are cases where he is typically asking for deference to established authority. So if a prison gets sued or if police officers get sued or a zoning board gets sued or a college gets sued, he is deferring to the authorities.

WERTHEIMER: Describe some of the dissents that you think might prove to be good indicators of where his presence on the Supreme Court could make a difference.

Prof. SUNSTEIN: Well, there was one case where prisoners were forbidden from getting newspapers and magazines. The majority of the court said you can't do that. Judge Alito said that the prison had the authority to stop them from getting newspapers and magazines. There's another case with really horrendous facts in which a 10-year-old girl and her mother were subject to a bodily search--that is, a strip search--under a warrant that didn't authorize the bodily search. And the court said that was a clear violation of constitutional rights and the little girl and her mother could sue the police. Judge Alito dissented, saying that the mother and the girl could not sue the police because the police had immunity against that lawsuit.

WERTHEIMER: He's going to replace Sandra Day O'Connor if he's confirmed, and she has been a significant vote on the court for many years, sometimes voting with one group and sometimes another. Where do you think the presence of Samuel Alito might make a difference in what the Supreme Court does?

Prof. SUNSTEIN: Well, a lot of areas in cases involving civil rights or in constitutional questions involving, let's say, the power of the police, the power of the Immigration and Naturalization authorities, he is likely to be, on the basis of the evidence we have, a fairly consistent vote, as Justice O'Connor was not.

WERTHEIMER: Another dissent on a controversial issue, he disagreed with his court's conclusion that a state could ban machine guns under the Commerce Clause of the Constitution. What's the significance of that dissent as far as his thinking goes?

Prof. SUNSTEIN: OK, that's a very big deal. Much of what Congress does, with respect to the environment and civil rights and a lot more, it does under the Commerce Clause. What Judge Alito said, in this dissenting opinion, was that the possession of machine guns wasn't something that Congress could reach under the Commerce Clause. That opinion does signal that, unlike Justice O'Connor, and, certainly, unlike some of the others on the current court, he will be interested, let's just say, in restricting Congress' power under the Commerce Clause in a way that could have serious implications for the Endangered Species Act and the Clean Water Act. We're in the midst of a minor and quiet revolution in which the Supreme Court has, for the first time in many decades, been striking down acts of Congress under the Commerce Clause, and it's reasonable to say, not that Judge Alito will be a firebrand or lawless--nothing like that--but that he will be interested in attacks on laws that are apparently beyond Congress' power under the Commerce Clause.

WERTHEIMER: Cass Sunstein is a professor of law and political science at the University of Chicago. His most recent book is called "Radicals in Robes."

Professor Sunstein, thank you very much.

Prof. SUNSTEIN: Thank you.

WERTHEIMER: And it's 18 minutes past the hour.

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