Conservative Situational Certainty

Samuel AlitoI just came upon an interesting article from last June by Jonathan Zasloff in The Reality-Based Community. It is about Justice Samuel Alito’s dissent in Miller v. Alabama. That was the case where the court found that it was unconstitutional to provide mandatory life in prison without parole for juvenile offenders. Alito wrote, “Nothing in the Constitution supports this arrogation of legislative authority.” In other words, Alito is saying the courts don’t have the constitutional right to usurp the authority of the legislature. Zasloff notes that this is interesting, because Alito didn’t think this when it came to Obamacare.

Alito was so angry about the court’s ruling that he read his dissent from the bench. This is typical of what I find so bothersome about conservatives generally, but especially on the bench. Samuel Alito here is making the case that the law is very clear. It goes right along with John Roberts’ statement that he just “calls balls and strikes.” But somehow, the clarity of the law vanishes the moment they have an opportunity to score a partisan blow. This predates Alito, of course. Just go back to Bush v. Gore, where the conservatives who hated the equal protection clause and interpreted it very narrowly suddenly found that it was very big when it came to the protection of George W. Bush. But even there, they had to add a statement that even though they had ruled for the equal protection of Bush, the ruling could not be used as precedent when it came to the equal rights for anyone else in the future.

When it came to mandatory minimums for juvenile offenders, Alito couldn’t find anything in the Constitution that would allow the Supreme Court to interfere. But when it came to Obamacare, Alito didn’t even think about such limits to its power. Here’s Zasloff:

Alito would no doubt answer that in the health care cases, the issue is whether the federal government has the authority in the first place. You can’t usurp authority from a government that doesn’t have it. But that was also the case with the issue of mandatory life-without-parole sentences for juveniles: if the Eighth Amendment applies, then the state government does not have the authority to impose those sentences. All of which is to say that “judicial activism,” the hobbyhorse that conservatives have used to complain about judicial decisions since Brown v. Board of Education (and yes—they vehemently complained about that one), is essentially a meaningless trope. For Alito to use it so casually shows that he’s almost as bad a judge as Scalia, which is [saying something].

The point is that Alito, like most conservative judges, takes the law very seriously. Until he doesn’t. As Zasloff says, “Cutting 30 million people off of health insurance, however, is just a day at the office.”

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About Frank Moraes

Frank Moraes is a freelance writer and editor online and in print. He is educated as a scientist with a PhD in Atmospheric Physics. He has worked in climate science, remote sensing, throughout the computer industry, and as a college physics instructor. Find out more at About Frank Moraes.

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