Why Alito? (user search)
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  Why Alito? (search mode)
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Author Topic: Why Alito?  (Read 1419 times)
Okay, maybe Mike Johnson is a competent parliamentarian.
Nathan
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« on: July 09, 2022, 07:57:30 PM »

Let's talk tea leaves here. It seems like literally any other justice in the Dobbs majority could have produced a controlling opinion that was at least a little better than what we ended up with, from one perspective or another. Thomas and Gorsuch would have produced bizarre, extreme opinions, but ones that would have "ripped the band-aid off" and leaned at least a little bit more towards legal and moral theory and less towards ideological diatribe than Alito's ultimately did. Barrett would have had the best optics. Kavanaugh's (disingenuously) conciliatory and apologetic writing style might have won the decision more public acceptance and/or a sixth vote from Roberts, who, as we all know, concurred in judgment anyway. And yet instead of assigning the majority opinion to any of these people, even himself, Thomas assigned it to Alito, whom practically nobody regards highly as a legal thinker and who's thought of by liberals and conservatives alike as one of the most party-political justices in the Supreme Court's modern history. Why do we think this was? After a few people have posted, I'll share my own thoughts.
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Okay, maybe Mike Johnson is a competent parliamentarian.
Nathan
Moderator
Atlas Superstar
*****
Posts: 34,577


« Reply #1 on: July 13, 2022, 10:48:14 PM »

My own thoughts:

1. The conservative majority thought of this as more of a political victory than an exercise of legal reasoning (even though as an exercise of legal reasoning it is, or easily could have been made, sounder than the Roe exercise originally was), and so they gave it to Alito as a "lib-owning" decision; they weren't concerned with gaining public acceptance for the ruling or with the ministerial task of rectifying a past instance of bad constitutional interpretation, they were concerned with spiking the ball for the conservative legal movement, which is also a political movement, and so went for the jugular.
2. Alito and/or his clerks had more time and energy for digging through nineteenth-century statutes and common law writings like those of Bracton, Coke, Hale, and Blackstone in order to construct the historiography that the Dobbs analysis relies on than did the other justices in the majority and/or their clerks.
3. Alito's never really gotten a makes-national-headlines-for-days-on-end barn-burner decision before and it was decided that he'd paid his dues.
4. Alito just has that Jersey-boy je ne sais quoi that the right flank of the Court has been jonesing for more of since Scalia shuffled off this mortal coil.
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Okay, maybe Mike Johnson is a competent parliamentarian.
Nathan
Moderator
Atlas Superstar
*****
Posts: 34,577


« Reply #2 on: July 15, 2022, 05:30:50 PM »

Let's talk tea leaves here. It seems like literally any other justice in the Dobbs majority could have produced a controlling opinion that was at least a little better than what we ended up with, from one perspective or another. Thomas and Gorsuch would have produced bizarre, extreme opinions, but ones that would have "ripped the band-aid off" and leaned at least a little bit more towards legal and moral theory and less towards ideological diatribe than Alito's ultimately did. Barrett would have had the best optics. Kavanaugh's (disingenuously) conciliatory and apologetic writing style might have won the decision more public acceptance and/or a sixth vote from Roberts, who, as we all know, concurred in judgment anyway. And yet instead of assigning the majority opinion to any of these people, even himself, Thomas assigned it to Alito, whom practically nobody regards highly as a legal thinker and who's thought of by liberals and conservatives alike as one of the most party-political justices in the Supreme Court's modern history. Why do we think this was? After a few people have posted, I'll share my own thoughts.
1, It is not clear was it Roberts or Thomas that assigned the opinion.

Roberts concurred in judgment only. It was almost certainly Thomas who assigned the opinion once it became clear there were five and only five votes for going "all the way".
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