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Sunday, November 20, 2005

Amar on Alito

Vik Amar has a nice op-ed in the LA Times today about Alito and his '85 job application.  Here's the core:

Much of what Alito wrote in 1985 no doubt shocks many people today. Perhaps most arresting is his disagreement with the Warren court's reapportionment rulings.

The court struck down legislative districts in which some voters (mostly in rural white areas) enjoyed a much greater electoral voice than others (in urban regions containing with many poor people and people of color).

These "one person, one vote" cases are as canonical in 2005 as is Brown vs. the Board of Education, and were even used by the Supreme Court in deciding Bush vs. Gore.

But in challenging these and other Warren court decisions, Alito simply shows what it meant to be a true conservative in the 1960s and 1970s. Conservatives openly attacked Brown 40 years ago. They sharply criticized the idea that judges should regulate redistricting. They hotly questioned the (now entrenched) notion that Bill of Rights' protections should also apply to the states. Today's conservatives aren't exactly eager to remind everyone what conservatism meant just one or two generations ago, and how they were often fighting on the wrong side of history.

But is today's conservatism still fighting those battles?

It's noteworthy that although Alito expressed disagreement with the Warren court's rulings on reapportionment, defendants' rights and the establishment clause, he didn't indicate a strong desire to mount a legal campaign to overturn them. Even by 1985, most conservatives had grudgingly come to accept, if not embrace, school desegregation; one person, one vote; Bill of Rights protections against the states; the requirement of Miranda warnings for criminal defendants, and even bans on heavy-handed school prayer.

Amar has some ideas for why conservatives have given up many of their other policy preferences but have held onto the campaign to overturn Roe.  It may be no more complicated, however, than the simple observation that abortion is just a very hard issue -- and the idea that there is a constitutional right for abortion is a much more difficult claim to maintain than the other areas where liberals successfully got the Court to recognize constitutional rights.

Posted by Ethan Leib on November 20, 2005 at 07:18 PM in Article Spotlight | Permalink

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» Blog Round-Up - Monday, November 21st from SCOTUSblog
Oyez has archived Judge Alito's oral argument in FCC v League of Women Voters. Here is the audio link. Concurring Opinions has this post on the fact that a judge's past judicial record is not necessarily a good indication of... [Read More]

Tracked on Nov 21, 2005 11:22:50 AM

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