Wash. Post used false comparisons to differentiate Alito from Scalia, Thomas


The Washington Post used false and misleading comparisons to report that, during his recent Supreme Court nomination hearings, Samuel A. Alito Jr. "did not embrace some of the most controversial legal views" of conservative Supreme Court justices Antonin Scalia and Clarence Thomas.

In a January 13 article, Washington Post staff writer Charles Lane used false and misleading comparisons to report that, during his recent Supreme Court nomination hearings, Judge Samuel A. Alito Jr. "did not embrace some of the most controversial legal views" of conservative Supreme Court justices Antonin Scalia and Clarence Thomas. Lane suggested that Alito distanced himself from strict constructionism, a method -- which Lane wrote falsely that Scalia has embraced -- of "interpret[ing] only the literal text of statutes and the Constitution." Lane also suggested that Alito distinguished himself from Thomas by placing "much greater emphasis on precedent" in determining whether to overrule a previously upheld constitutional principle.

In fact, while Alito explicitly rejected strict constructionism as a theory of constitutional interpretation, so has Scalia: Both embraced the conservative -- and controversial -- principle of originalism in constitutional interpretation, which holds that the Constitution should be interpreted based on the original intent of the drafters. Moreover, like Alito, Thomas emphasized the importance of precedent during his 1991 hearings, but Thomas then largely dismissed the concept of stare decisis (respect for legal precedent) as a guiding principle once he was confirmed to the Supreme Court. In other words, neither of the examples cited by Lane -- of Scalia's purported embrace of strict constructionism or Thomas's rejection of precedent -- offer any support for Lane's assertion that Alito "did not embrace some of the most controversial legal views" of Scalia or Thomas.

From Lane's January 13 Post report, which suggested that both Alito and recently confirmed Chief Justice John G. Roberts Jr. differentiated themselves from Scalia and Thomas during their respective nomination hearings:

[L]ike Roberts, Alito did not embrace some of the most controversial legal views of Scalia and Thomas.

Scalia has said that the Supreme Court should interpret only the literal text of statutes and the Constitution, and not search historical records for evidence of their authors' intent.

But Alito said: "I'm not one of the judges who thinks that ... you should never look to legislative history. I think it has its place."

And Alito put much greater emphasis on precedent than does Thomas, who has called for overruling decisions that clash with his view of the Constitution's literal meaning.

Stare decisis, the notion that past decisions generally should be followed to avoid legal instability, "is not an inexorable command," Alito said. But long-standing decisions such as Roe [v. Wade] should not be overturned absent some "special justification," he said.

By reporting that Scalia believes that "the Supreme Court should interpret only the literal text of statutes and the Constitution," Lane falsely suggested that Scalia is what constitutional scholars call a "strict constructionist," whereas Alito is an "originalist" who seeks to determine the original intent of a constitutional provision's authors. In fact, the available evidence suggests that both Alito and Scalia embrace originalism as the appropriate method of constitutional interpretation.

As the Post reported on March 15, 2005, Scalia himself has said that he is an "originalist" and "not a strict constructionist." Moreover, a January 13 New York Times article noted that Alito appeared to distinguish himself from Roberts -- not Scalia -- by espousing originalism:

On one of the few occasions Judge Alito spoke about his general approach to the law, he embraced a mode of constitutional interpretation, originalism, often associated with Justices Scalia and Thomas.

"In interpreting the Constitution," Judge Alito said Wednesday, "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption."

Chief Justice John G. Roberts Jr., by contrast, described a more eclectic and dynamic approach to constitutional interpretation at his confirmation hearings in September. Justice Sandra Day O'Connor, whom Judge Alito will replace if he is confirmed, has also embraced a variety of approaches.

"Judge Alito sounded less amenable to constitutional evolution than Roberts," said Cass R. Sunstein, a law professor at the University of Chicago who studied Judge Alito's dissenting opinions at the request of Senator Edward M. Kennedy, Democrat of Massachusetts, but has taken no position on the nomination. "He is someone who is more likely to vote with Justice Scalia and Justice Thomas than Justice O'Connor."

As the Times noted on September 16, 2005, Roberts disavowed originalism during his September 2005 confirmation hearing:

Over three days of testimony, between declining to answer questions on specific cases and legal issues, Judge Roberts made clear that his approach to interpreting the Constitution is more varied and flexible than the originalism subscribed to by Justices Clarence Thomas and Antonin Scalia. President Bush has singled them out as models for the sorts of justices he planned to appoint.

"I think the framers, when they used broad language like 'liberty,' like 'due process,' like 'unreasonable' with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages," Judge Roberts said Wednesday.

He said he would consider not only how the framers of the Constitution understood those words, but also how courts have interpreted them and how they apply to evolving societal conditions.

That approach disappointed some conservative legal scholars.

"He is not in the mold of Scalia and Thomas," said Steven G. Calabresi, a law professor at Northwestern and a chairman of the Federalist Society, the conservative legal group. "They have more of a theory of how to decide cases, and they look to text and original meaning. Roberts will look at text and original meaning, but he will also look to precedent and the consequences of his decisions."

The contrast Lane drew between Alito and Thomas is also misleading. It is true that the respect for precedent that Alito pledged during his nomination hearings is in stark contrast to the lack of adherence to precedent that Thomas has displayed on the Supreme Court -- Scalia noted in 2004 that Thomas "does not believe in stare decisis, period." But Lane ignored a more apt comparison of Alito and Thomas regarding precedent: how Alito's comments on the subject compare to what Thomas said during his 1991 nomination hearings.

Like Alito, Thomas emphasized the importance of respect for precedent, or stare decisis, several times during his hearings, as the weblog TPMCafe has documented:

"When you have a precedent that has been relied on in the development of subsequent Supreme Court law, it is not one that was simply there and has never been relied on by the Court, but I think that you would give significant weight to repeated use of that precedent and repeated reliance on that precedent. I think that is very important." [Response to a Question by Senator [Patrick] Leahy [D-VT], 9/16/91]

"Stare decisis provides continuity to our system. It provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept." [Response to a Question by Senator [Strom] Thurmond [R-SC], 9/10/91]

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