Alito Nonsense

Can we just stop this nonsense about Judges enforcing the law but not “making” it? And that there is such a thing as a non-ideological Supreme Court justice?

Many people have articulated the problem better than I possibly could. But it boils down to this: “the law” is not deterministic. It is, as a practical matter, impossible to enact statutory language that is sufficiently specific to cover every situation that will appear before a court. The reason cases end up in litigation is, quite often, because the law is not clear on what the result should be. Law is not like source code that can be compiled into an object file and then fed arbitrary input to generate a certain predictable result. The real world is complex. Conditions arise over time that the legislators enacting the statute (or the framers drafting the constitution) could not have foreseen. Even if you believe Judges should exercise “restraint,” in many cases it is impossible to determine, objectively, what outcome represents the more “restrained” position. (I think Alito admitted an analogous issue today when he said that conservatives can be as much “activists” as liberals).

People should agree or disagree with Judge Alito’s judicial approach, but it’s absurd to suggest that he doesn’t have an ideology, or that he could sit on the Supreme Court and just apply the law “as it is written” without having to make interpretive leaps. Those leaps will almost always involve issues on which reasonable people can differ — otherwise the case would never have reached the Supreme Court. That is, in fact, the whole point of the Supreme Court.

1 comment

  1. Jason Jan 28

    hear, hear.

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