Deconstructing Scalito

I have written a little piece on Alito's abortion jurisprudence; it should be posted on The New Republic's website in a few hours and I'll provide a pass-through link when it becomes available.

The piece originally covered some other material but it was cut, so I'll post it here:

"Scalito": What's in a Name?

Judge Samuel A. Alito, Jr. has earned the moniker "Scalito" by journalists and others who can't help but adopt a fun turn of phrase. But other than being reliably conservative on a set of contested political and legal controversies, Alito may have little in common with Associate Justice Antonin Scalia. Just as many have mistakenly taken Associate Thomas to be a Scalia-clone when Thomas has developed a jurisprudence all his own, Alito is also too facilely being compared to Scalia. To be sure, at this early stage of evaluating his large corpus of opinions, no one contests that Alito has bona fides on the Right; but a quick peek into his judicial work does not reveal a Scalia wannabe.

Take abortion. [REDACTED: FORTHCOMING IN THE NEW REPUBLIC]

Is, then, Alito an originalist in the mold of Scalia -believing that constitutional provisions should be interpreted so as to give effect to the public meaning the words had when they were authored? We have precious little evidence to reach that conclusion from a quick search through his judicial opinions. He quotes the constitution's Framers in two Fourth Amendment cases; and in one Speech and Debate Clause context. James Madison and The Federalist Papers get a single nod in an election law decision, but mostly gratuitously. For a judge on the bench as long as Alito, one would sniff more vintage from his opinions if he were a committed originalist.

What about his use of the dictionary? We have all been entertained by Justice Scalia's commitment to Webster's Second in his pursuit of a statutory textualism. Is there evidence that Alito is Scalia-like on this register? Here, there may be some similarity after all: Alito has thirty-four opinions drawing upon the dictionary as a resource to engage in judicial interpretation; Scalia has forty-five. Alito's opinions are peppered with references to Webster's Third New International Dictionary, Webster's Ninth New Collegiate Dictionary, Black's Law Dictionary, Random House Dictionary of the English Language, Random House Unabridged Dictionary, The Sloane-Dorland Medical-Legal Dictionary, Stedman's Medical Dictionary, the Department of Labor's Dictionary of Occupation Titles, www.dictionary.com, and, of course, the Oxford English Dictionary. If love of careful language and dictionaries makes one a Scalia, I suppose the moniker has some credibility.

What about Scalia's quest to furnish a single standard of judicial deference to agency rules in the administrative law context? In 2000, in a case called United States v. Mead, the Supreme Court ruled that agency rules could be reviewed on two tracks: under the very deferential "Chevron standard" or the more searching "Skidmore deference." Chevron had been the traditional form of deference offered agencies, and Mead clarified that Skidmore remained a relevant standard. Scalia dissented alone in an opinion aimed to reveal the difficulties of the Mead doctrine and to explore how lower courts could be completely confused by the imprecise pronouncements and tests Associate Justice Souter wrote into law.

To some extent, Scalia's dissent was prescient, for the correct application of Mead remains unclear in the lower courts and among academic commentators. Yet, Alito, ruling last year in Southco, Inc. v. Kanebridge Corp., a highly contentious en banc case in the Third Circuit applied Skidmore deference, the very form of deference Scalia excoriates in his Mead dissent. Alito had done so on a previous occasion as well. Obviously, Alito, as a lower court judge, must apply governing Supreme Court precedent. But he doesn't have to like it. And there is nothing in his recent administrative law decisions that reveals sympathy for Scalia's positions.

What, finally, of Scalia's position that in interpreting legislative statutes, discussion of "legislative history" to derive meaning is off limits? Scalia, an advocate of the new textualism, has argued in his A Matter of Interpretation and judicial opinions that it is inappropriate and inadvisable for judges to consider legislative history in statutory interpretation. Although Scalia himself does not always follow his rule of thumb, and Associate Justice Stevens has forcefully argued for why and when it is relevant, Scalia has very publicly and repeatedly argued for the exclusion of legislative history in favor of the plain meaning of statutes.

So does Alito use legislative history when he writes statutory interpretation decisions? I count dozens of Alito opinions that draw upon legislative history. Again, no Scalia parrot here.

In the weeks to come, we will learn much more about Judge Alito. He isn't likely to emerge as Scalia-like in many ways-and it would be useful if we all moved past name-calling and evaluate Alito for who he is.