Laurence Tribe has a worthwhile op-ed on Samuel Alito in the Boston Globe
today that SCOTUSblog reprints here
. Tribe's purpose is not to dissect Alito's legal temperment so much as it is to remind us that there's more to a Supreme Court justice than just his approach to constitutional theory:
Alito seems as decent and fair-minded as he is bright, and I don't doubt his sincerity in separating the results he might like to see from those he concludes the law requires. I simply make a plea to quit pretending that law, life, and an individual's unarticulated assumptions about both can be entirely separated when assessing what someone's addition to the Supreme Court would mean for all of us well into the 21st century.
Today's controversies over liberty, equality, personal privacy, and government power have implicated practices from body cavity searches to infrared surveillance of home life to spousal or parental involvement in abortion. Tomorrow's may involve questions about cloning body parts, implanting once-frozen embryos, deploying genetic screening or brain scans, and heaven knows what else. Slogans about just following "settled law" as though it were a computer application, sticking to the text's "original meaning" as if that were a matter of scientific fact, never "legislating from the bench" as if judges ever think they're doing that, remaining within an imagined "mainstream," and by all means respecting precedent -- particularly so-called "super-precedent" -- offer precious little insight into how a justice might actually approach these brave new worlds.
If we care, we'd better stop the charade of pressing the nominee to tell us where he or she "really" stands on buzzwords like privacy or states' rights and start probing for clues to the nominee's basic ways of understanding society and law's place within it. Only then will the confirmation process be worthy of the Constitution it guards.