Is Justice Alito a Crit (or Just a Movement Conservative)?

Cross-Posted at The Faculty Lounge

Given the larger current political environment, it is perhaps understandable a rather remarkable speech Justice Alito gave at the Claremont Institute in early February received relatively little media attention (Mark Joseph Stern excepted). In addition to setting forth a robust constitutional conservatism—not, notably, couched in the narrative of originalism–Alito also explicitly advocated for the larger conservative political agenda, in the process invoking decades-old resentments and through lines in postwar conservatism. This was not a Scalian speech arguing for originalism, but more in the spirit of William F. Buckley, one of Alito’s intellectual heroes–Alito’s 1985 DOJ application, declared, “I am and always have been a conservative” and that the “greatest influences on my views” were Buckley and Goldwater. While the critical legal studies movement is rightly associated with the Left, Alito appears to be the mirror image of a still-hypothetical Leftist crit justice (Douglas was the closest, Brennan’s story is more complex). It is difficult to read the Claremont speech and think otherwise. Alito is not only hinting at where he sees the Court moving with five conservative votes now, but how the conservative movement, from NR-style “fusionism,” Goldwater, the New Right, to the Federalist Society ecosystem, all shaped his worldview. This is a speech worth paying attention to.

The first substantive aspect of the speech touches on the regulatory state: “federal law,” Alito states, “is made in a way that is never mentioned in the Constitution. It is promulgated by unelected executive branch officials in the form of federal regulations.” The inexorable “result has been a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.”

Alito is of the same mind as the House GOP which, one month prior to Alito’s speech, passed a bill(s) repealing Chevron deference because, as House Judiciary Chairman Bob Goodlatte stated, regulations were “overly burdensome” and holding back economic growth. Not coincidentally, Alito’s Claremont speech bemoaned the “enormous increase in regulations that we have experienced with all of the attendant effects on our economy.”

Alito had a ready-made explanation for the why regulations have been, necessarily, a drag on our economy.

Now, how did this happen? And again, I’m going to go over ground that was covered before. To make a long story short, toward the end of the 19th century and the beginning of the 20th century, the progressives of the day came to believe that our 18th century Constitution—our horse-and-buggy Constitution, as they sometimes called it—was outmoded. Woodrow Wilson—our only PhD President, by the way—is a picture of this thinking.

Now, just as an aside, I think it is interesting that of all the presidents, the one who best understood our constitution, who got to the real core of its meaning, was the one with the least formal education—and that, of course, was Abraham Lincoln. And Wilson, the president with the most formal education, was the most openly hostile.

This is of course in line with the scholarship of George Mason’s David Bernstein and prominent originalist Randy Barnett. Less happily, it is also the story told by Charles Murray and Glenn Beck.  Equally salient, though, is that Alito highlights a persistent trope of post-war conservatism–downplaying “expertise” and highlighting “common sense.” And after averring he is neither a “scientist” nor an “engineer,” a well-worn conservative talking point, Alito invokes standard-issue climate change skepticism:

“Carbon dioxide is not a pollutant. Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting.”

President Trump’s new EPA chief, Scott Pruitt, toes this same science-skeptical rhetorical line. (Historians’ accounts of conservatives, especially religious conservatives, suspicion and attacks on expertise are exemplified by Jason StahlMatthew Avery SuttonMichelle NickersonMolly Worthen, and the forthcoming book by political scientists Eric Oliver and Thomas Wood).

This would all be remarkable enough. But Alito then weighs in on the “culture wars,” criticizing the Court’s handling of Fisher v. Texas. There “is an obsession,” Alito laments, “with putting people into racial categories” by those who defend affirmative action. And after briefly decrying the Court’s refusal to protect religious freedom (of Christians), Alito moves on to campus speech issues and the “university vanguard.” This attack is in line with a long tradition on the Right; e.g., Buckley’s God and Man at Yale, Dinesh D’Souza’s Illiberal Education, (recent anti-Trump liberal darling) Charlie Sykes’ Profscam, and Ben Shapiro’s Brainwashed.

And in connecting free speech issues with criticism of the “media elite,” Alito echoes a conservative truism dating back at least to Goldwater’s 1964 presidential campaign, at the same time working in a defense of Citizens United:

Freedom of speech is not a prerogative of those in positions of power or influence. It is not the property of those who control the media. It is the birthright of all Americans. 48 Senators sponsored a resolution proposing a constitutional amendment that would preserve the free speech rights of the media elite but allow Congress and the state legislatures to restrict the speech of everybody else on any subject that came up during the political campaign, which is to say, any important social or economic problem facing the country.

Finally, and this is perhaps the most remarkable point of the speech, Alito engages, without naming names, Mark Tushnet’s (ironically, a prominent crit himself) Balkinization post regarding the culture wars:

Here are the words of a professor from Harvard Law School, in May of last year, proclaiming, maybe prematurely, that the left had won the culture wars—the professor had the following advice. “My own judgment is that taking a hard line—you lost, live with it—is better than trying to accommodate the losers. Trying to be nice to the losers didn’t work well after the Civil War, and taking a hard line seemed to work decently well in Germany and Japan after 1945.

So, in other words, we have Nazis and former slaveowners, we have people who cling to traditional moral beliefs, same difference. They are losers in the war and they just have to accept it.

That Alito is deeply conservative is not the interesting point here. Nor is my aim to raise the hackles of (certain) liberals (especially those who have created a hagiography culture around Justice Ginsburg–the silly “Notorious RBG” meme which has perhaps encouraged some of her more impolitic remarks). More interesting is that judicial politics in 2017 allows a justice to explicitly advocate in a public speech not merely the judicial agenda of the conservative legal elite (who bided Trump’s oddities in exchange for a Supreme Court seat) but the larger conservative political agenda. Perhaps this is simply the next logical step after Scalia’s ideological entrepreneurism on behalf of originalism. Whatever else, it is telling of current political moment.

One of the originalist talking points during the Gorsuch nomination was that liberals should take comfort that Gorsuch is not a conservative living constitutionalist who will simply rule in the manner of a movement conservative. What they failed to mention is that there already is one on the Court.


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