Does Judge Alito Reflect George W. Bush’s “Libertarian Streak”?

by Jacob H. Huebert
LewRockwell.com, November 14, 2005

Supreme Court nominee Samuel Alito is so far from being a libertarian that I thought even the DC libertarian establishment would sit this one out. It seems, however, that I have overestimated our friends in the nation’s capital.

Thus we are presented with an article from the Cato Institute, by George Mason University law professor Ilya Somin, praising Alito’s “libertarian streak.”

Let’s look at what he says – and why Alito doesn’t have anything even close to “libertarian streak.”

Alito and Religious Freedom

Professor Somin begins by repeating Benjamin Shapiro’s line that Alito is great on religious freedom:

In sharp contrast to Scalia, Alito has often voted in favor of the free exercise rights of minority religious groups, even against laws that are not deliberately intended to harm minority religions. In Fraternal Order of Police v. City of Newark (1999), he joined an opinion holding that Muslim police officers had a right to grow beards (as required by their religion) so long as the city allowed a secular health-related exemption from its no-beard policy.

As in my previous piece on Alito, I ask: Who cares whether some cop gets to wear a beard? And why, in any event, should the federal government dictate the terms of local police departments’ employment agreements, any more than it should dictate those of private employers? Libertarianism isn’t about freedom for cops; it’s about freedom for people who just want government to leave them alone.

The next case Professor Somin cites is somewhat easier for a libertarian to appreciate: In Blackhawk v. Pennsylvania, Alito held that the Pennsylvania Game Commission could not require an Indian who kept two “holy” black bears on his property to get a permit and pay a fee.

Even if you don’t have a problem with the federal government controlling state governments like this, you should be aware that this decision, though libertarian in outcome, does not reflect a “libertarian streak” in Alito.

Instead, this decision, like the cops-with-beards decision, turns on the fact that the rule being enforced made some exceptions for secular purposes, but not for religious purposes. Specifically, the statute exempted zoos and circuses from the fee requirement – but the lawmakers somehow didn’t think to exempt people who worship bear gods. Alito held, in essence, that the state could not justify making an exception for those secular people and not for bear people who want to use animals for religious purposes.

And, I agree, that’s not fair.

But Alito made clear that he would have had no problem with the law at issue if it forced everyone to pay a fee, religious and non-religious alike. Thus, we can see that Alito’s decision could just as easily push the law in a non-libertarian direction (when the state legislature reacts to it) as a libertarian direction. Alito’s opinion provides no basis for concluding that he favors one outcome over the other.

Alito and the Commerce Clause

How ironic, after praising Alito for stepping on state governments’ restrictions on religion, that Mr. Somin next praises Alito as an ally of federalism! He writes:

Alito also differs from Scalia on the key issue of federalism. In United States v. Rybar (1996), Alito dissented from a case upholding a federal statute banning machine gun possession. Alito argued that a categorical ban on the intrastate ownership of machine guns falls outside of Congress’s power to regulate interstate commerce. The case cannot be explained, as some might believe, on the grounds that Alito somehow sympathizes with private ownership of machine guns. In the opinion, he favorably refers to state bans on machine gun possession. Alito’s position differs from Scalia’s recent opinion in Gonzales v. Raich, where the Justice argued that the commerce power justified upholding a federal ban on the possession of marijuana, even for noncommercial medical purposes permitted under state law.

Professor Somin echoes a number of people, perhaps well-intentioned but nonetheless mistaken, who have written to me saying, “But Alito’s good on the Commerce Clause!”

It’s true, of course, that “intrastate ownership of machine guns falls outside Congress’s power to regulate interstate commerce.” But is that what Alito really said in his Rybar dissent?

Yes, he would have struck down the federal statute banning intrastate machine gun possession on Commerce Clause grounds. But then he added the following:

I would view this case differently if Congress as a whole or even one of the responsible congressional committees had made a finding that intrastate machine gun possession, by facilitating the commission of certain crimes, has a substantial effect on interstate commerce.

So Alito did not say Congress cannot regulate intrastate machine gun possession. He only said that it can’t do so unless it “finds” that machine-gun possession “has a substantial effect on interstate commerce.”

Do you think Congress would have any trouble “finding” that? I don’t – and I’m sure Judge Alito doesn’t, either. That’s why he’s saying to Congress, “Hey, guys, make some findings next time so we don’t have to strike down your law!” His interpretation of the Commerce Clause would not place anything off limits for Congress.

If you want to see an opinion that, though still not perfect, genuinely shows a “libertarian streak” with respect to the Commerce Clause, look at Justice Thomas’s concurrence in United States v. Lopez. Then contrast it with what Alito wrote.

Alito and Free Speech

Mr. Somin continues:

Additionally, Alito has taken important libertarian positions on free speech issues. In Saxe v. State College Area School District (2001), he concluded that anti-harassment rules should not be allowed to infringe on free speech in a case where a public school anti-harassment code was used to forbid expression of some students’ religiously based opposition to homosexuality. He has also written opinions protecting commercial speech, notably in Pitt News v. Pappert, where he struck down a ban on paid alcohol advertisements in student newspapers. Expansive definitions of “harassment” and restrictions on commercial speech are two of the most important threats to free expression today. Libertarians have every reason to welcome this aspect of Alito’s jurisprudence.

The first opinion here has little to do with the libertarian concept of free speech – i.e., the idea that you can say what you like on your own private property. Instead, it involves a typical battle over speech on government property.

It is perfectly respectable, of course, to say that as long as the government owns property on which people can speak, it shouldn’t discriminate based upon viewpoints. On the other hand, I’m not sure all libertarians would be willing to go all the way with this idea, and agree with the ACLU that NAMBLA should be allowed to hold meetings in public libraries – as, incidentally, it has, thanks to some judges’ ideas on its First Amendment rights.

Regardless of your views on that, are speech restrictions on government property one of the “most important threats to free expression today”? What about the many worse ways in which government stifles speech on private property?

The Pitt News case, I will concede, appears to reach an appropriate libertarian conclusion about commercial speech (ignoring, for the moment, that once again Alito favors federal power over the states).

Well, so what? So Alito has one or two good free-speech cases. So do all judges – we have, after all, a rather liberal First Amendment. Do one or two such cases a “streak” make? If so, where is Professor Somin’s article on John Paul Stevens’s “libertarian streak”?

Alito and Immigration

Somin also suggests that Judge Alito may lean libertarian on immigration issues.  Somin writes:

Alito showed some libertarian leanings in a key immigration case. In Fatin v. INS (1993), he wrote an opinion holding that an Iranian woman could be entitled to refugee status based on the Iranian government’s oppression of women and on her support for women’s rights. Fatin was not a constitutional case, and was partially based on deference to agency judgment. Still, Alito embraced a more expansive vision of refugee rights than is accepted by many conservatives, and advocated a broad definition of asylum rights for victims of gender-based persecution.

Mr. Somin’s summary of Fatin omits one critical fact: Alito sent the woman back to Iran! I’m not sure what aspect of the decision’s dicta pleases Somin so much, but I like this quote from it:

Here, while we assume for the sake of argument that requiring some women to wear chadors may be so abhorrent to them that it would be tantamount to persecution, this requirement clearly does not constitute persecution for all women.

Yes, some women might really hate being forced to wear chadors, but you look like you can take it, so back you go! And notice that he carefully says, in the above quote and elsewhere in the opinion, that he accepts the premise that this could be persecution only “for the sake of argument.”

In fairness, I probably would have reached the same conclusion as Alito in this case, because the law requires an extremely high level of deference to a deportation decision. Indeed, in this instance, my problem is not with Judge Alito so much as with the suggestion that there was something libertarian about it when, as far as I can tell, there was not, in either outcome or reasoning.

Conclusion

Judge Alito has an unusually lengthy history of judicial opinions and other writings from which we can form ideas about his view of the law. From all of this, Professor Somin has taken a tiny handful of cases to make his case that Alito has a “libertarian streak” – and, as we have seen, even most of those cases provide no evidence for any such claim.

I won’t speculate as to why an ostensibly libertarian organization would want to get behind Judge Alito, or anyone George W. Bush would consider worthy of the Supreme Court, let alone stretch so far to do so. They, of course, can waste their time and efforts however they like.  I’m confident that Alito will be confirmed with or without their help.

I only hope no one is taken in by their campaign and moved to spend their own resources supporting this unmistakably statist judge on the bogus premise that doing so will somehow advance liberty.