Conservatives, but not clones Rulings by Alito and Scalia in 11 cases reveal contrasts

Star ^ | 11.18.05 | ROBERT SCHWANEBERG

[Coleus]

In the three weeks since he was nominated to the U.S. Supreme Court, Samuel Alito Jr. has been repeatedly compared and contrasted to Justice Antonin Scalia.

Both are from New Jersey, Italian-American, and served on federal appeals courts. Many observers say Alito would join Scalia as a predictably conservative vote on the high court. Others say Alito would be more protective of individual rights, particularly religious liberty, than Scalia.

Such predictions are necessarily educated guesswork. But there is a small group of cases on which there is no need to guess.

A review of the more than 100 cases that have gone to the Supreme Court from the 3rd Circuit since Alito joined the Philadelphia-based appellate court in 1990 shows 11 cases in which both he and Scalia issued rulings. In those 11 cases, they disagreed nearly as often as they agreed, reaching different conclusions in five cases.

Three of those disagreements came in the four criminal cases they both heard. And while those statistics hardly disprove the notion that both Alito and Scalia are conservatives, they do show just how uninformative that label can be.

"There are so many brands of judicial conservative that to say they are cut from the same cloth, that can be misleading," Ronald Chen, an associate dean at Rutgers School of Law in Newark, said.

Consider the case of Thomas vs. Commissioner of Social Security. After a 1988 heart attack left her unable to continue working as a housekeeper, Pauline Thomas found an easier job operating an elevator. That lasted until 1995, when the Hudson County administration building, where she worked, acquired automated elevators.

At age 54, suffering from cardiac and back problems, Thomas applied for Social Security disability payments. She was turned down because she could still operate an elevator,

[OrangeBlossomSpecial]

My only real question over the Justice nomination is whether or not Alito enjoys duck hunting. :-)

[Goldwater-Reagan Republican]

Already posted?

[publiusF27]

Alito:

Was United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?

...

In other words, the majority argues in effect that the private, purely intrastate possession of machine guns has a substantial effect on the interstate machine gun market. This theory, if accepted, would go far toward converting Congress's authority to regulate interstate commerce into "a plenary police power." Lopez, --- U.S. at ----, 115 S.Ct. at 1633. If there is any sort of interstate market for a commodity--and I think that it is safe to assume that there is some sort of interstate market for practically everything--then the purely intrastate possession of that item will have an effect on that market, and outlawing private possession of the item will presumably have a substantial effect. Consequently, the majority's theory leads to the conclusion that Congress may ban the purely intrastate possession of just about anything.

...

The activity that the Lopez Court found was not "economic" or "connected with a commercial transaction" was a type of intrastate firearm possession, i.e., the possession of a firearm (including a machine gun) within a school zone. At issue here is another type of purely intrastate firearm possession, i.e., the purely intrastate possession of a machine gun. If the former must be regarded as non-economic and non-commercial, why isn't the same true of the latter? Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms? [Footnote 4] Is the possession of a firearm within a school zone somehow less "economic" and "commercial" than possession elsewhere--say, on one's own property? [Footnote 5] If there are distinctions of constitutional dimension here, they are too subtle for me to grasp.

---

Scalia:

Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce.

...

The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.