This diary on dKos about Alito isn’t all that great. It does, however, confirm what Amanda’s article described: The basic bone environmentalists have to pick with Alito, and with conservative jurists in general, has to do with the Commerce Clause, which empowers Congress "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
(I’m not a lawyer or a law scholar, so take all that follows with a large grain of salt.)
The CC has been interpreted rather loosely by post-war courts (everything hinges, of course, on what the word "commerce" denotes), and has served as the basis for a great deal of federal regulation — in particular for our purposes, a great deal of federal environmental regulation.
The trend to widen the scope of the CC, by the courts and by legal advocates, was results-based. In a huge and growing industrial society, there was a perceived need for greater federal power, to create consistent health and labor practices across states, and to vouchsafe basic rights (against discrimination, polluted water, etc.). The CC was available as a tool, so it was used.
The conservo-libertarian quest to re-shrink the CC clause, and generally to restrict the scope of federal power, is allegedly not results-based. It’s based on a legal theory — federalism — purportedly closer to the "original intent" of the founders.
But this is my problem with theory-lovin’, libertarian-leaning intellectuals generally: When an administration wants to beat down environmental laws, it will suddenly become federalist, and call upon conservative scholars to provide it with intellectual cover. But when it wants to beat down state-level gay-marriage laws or medical-marijuana laws, federalism goes out the window and the CC comes roaring back into favor.
In short, conservative administrations, like all political actors, are results-based, alleged devotion to "small government" and federalism notwithstanding. To them, libertarian thinkers are … well, I won’t say "useful idiots," since they’re not idiots. They are, if anything, too smart for their own good. But they are useful.
So Jonathan Adler’s point (and again here) that criticisms of Alito are results-based don’t much move me.
Let’s assume that Alito is not, as Adler says, results-oriented. (Though this Knight-Ridder analysis would cast some doubt: "Although Alito’s opinions are rarely written with obvious ideology, he’s seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big businesses.")
Progressives — and, if they are being honest, 98% of conservatives — are results oriented. They have policy preferences, which they think will serve the country well. If environmentalists reasonably believe that Alito’s rulings will lead to adverse policy outcomes, and that other jurists with other (legitimate) interpretations will rule in more favorable ways, why can’t they criticize Alito?
I’m inclined to think that the unbiased, policy-neutral jurist is a myth. But even if it isn’t, the rest of us aren’t policy-neutral. Why pretend? The result of Alito’s appointment will be fewer environmental protections. So he shouldn’t be appointed. There you have it.
