We Know What Kind of Judge Alito Will Be

Writing for Forbes, celebrity lawyer and legal pundit Alan Dershowitz claims it’s pretty easy to figure out what kind of Justice Alito will be.

Almost all justices vote almost all of the time in accordance with their own personal, political and religious views. That is the reality, especially on the Supreme Court, where precedent is not as binding, and where cases are less determined by specific facts than by broad principles.

Now that’s a welcome bit of candor. As much as I favor justices who use a consistent judicial philosophy to decide cases, I know that there’s never been a Supreme Court Justice whose personal views have not influenced the outcome of some if not most of their decisions. Anyone who’s read Supreme Court rulings knows that often both the majority and dissenting opinions are incredibly logical. So, if a case has more than one logical conclusion, doesn’t a Justice's ruling often come down to nothing more than his or her personal preference?

That’s why liberals believe in the intellectually valid living Constitution which tends to produce liberal outcomes while conservatives believe in the just-as-intellectually valid ideas of originalism and strict constructionism which tend to produce conservative outcomes. Our judicial philosophies don’t drive our personal views. It’s the other way around.

That’s not to say that Justices always rule based on personal preference, just that they have a predilection to do so. And knowing this truth, don’t we also know what kind of Justice Alito will be? Dershowitz thinks so.

Alito will generally favor big government, big corporations, big religions and big majorities over ordinary citizens, consumers, minorities, religious dissidents, immigrants, persons suspected of crime and disenfranchised voters. He will have a narrow view of civil rights, women's rights, disability rights and immigrants' rights, and he will have a broad view of presidential power and states' rights.

Dershowitz frames all those points from a liberal mindset, but I don’t think he’s wrong. He could just as easily have said, Alito will favor the rule of law, traditional society and the free market over those seeking to tear down our institutions. He will favor an even playing field and refuse to bow down to those seeking special rights. And he will allow the President to do his job and not be dangerously weakened.

So, yes, we know what kind of judge Alito will be. But just like deciding a case before the court, it’s personal preference that guides our support or disapproval.