I’ll admit, I never really understood the positions of Chief Justice Roberts and Justice Alito. The impression that I got, however, was that they are both big on limited government and the statute of the law. (Please correct me if I am wrong.) So, I was wondering, would the Supreme Court now be more likely to rule in favor of Congress if the question of subpoenas of various White House staff does wind up in court.
You clearly don’t understand Scalia if you think he’s more loyal to any “judicial philosophy” than he is to W. I can’t think of him ever going against W on anything important, starting with the 2000 election. He even (with Alito and Thomas and nobody else) dissented from Hamdan v. Rumsfeld – based on the motherfucking flatly unconstitutional Detainee Treatment Act! :mad:
Dude’s a whore.
I could not disagree more. Scalia is not a whore; he is remarkably faithful to his ideology, and that’s the antithesis of being a whore.
But I think that the real question isn’t Roberts’ and Alito’s positions on limited government and originalism (what I understand the OP to mean by statutes of the law). The real question is how they feel about separation of powers, and the congress’s ability to subpoena the executive. I suspect that they would come down on the side of executive privilege, or if not, then on the side of judicial restraint – i.e., we’re not getting in the middle of a political battle between the two other branches of government.
Is anyone else amused by the notion that Bush considered nominating Gonzales to the Supreme Court, and did nominate Miers? For some reason, that makes me giggle.
Refusing to decide a basic and urgent constitutional question that no one but the SC has the power or authority to decide would not be “judicial restraint,” it would be an egregious neglect of duty.
I’m about as “amused” as I would be right after narrowly avoiding a high-speed traffic accident involving three SUVs and a fuel tanker.
I understand your loathing of Scalia, but how did this address the op’s question concerning Chief Justice Roberts and Justice Alito? He did not bring Scalia up. I think we can all safely assume how Scalia would side.
I think the Roberts and Alito question is interesting. I know very little about Roberts, the little I know about Alito makes be wonder if he would side against executive privilege. I could see him doing so.
Jim
Wasn’t Alito one of the stronger proponents of the “unitary executive” theory and presidential signing statements? (no cite - just thinking back to the discussions at the time of his confirmation hearings.)
If so, I would think he would be fairly receptive to executive privilege arguments.
Sorry. Alito, Scalia – it’s so easy to get them confused that they’re commonly referred to collectively as “Scalito.”
This is a remarkably ignorant statement. It reveals only that you know little to nothing about the issues involved here.
I didn’t coin “Scalito.” And what exactly do you think are “the issues involved here”?
Could you please clarify your remarks? While I agree that Alito and Scalia are not really that similar, you did not provide any of your insight into the actual question of the Ops either. You are in theory, far more qualified to comment on the question than BrainGlutton or myself. I hope you take the time to give us your valued opinion and maybe some facts that do bear on the question.
Jim
BrainG has raised two issues:
- Alito and Scalia are, in judicial outcome, so similar as to be identical.
- Scalia is a “whore” who is not loyal to any particular judicial philosophy (and is, by implication, result-driven).
The first statement is untrue, but certainly has some surface veritas to it. The differences between Alito and Scalia are in the details. Both are generally textualists; within that broad school is room for differing philosophy. Alito is more sympathetic to religious liberty claims, for example, and more willing to explore the idea that government regulations that appear neutral on their face may still unconstitutionally infringe on the exercise of religion. Scalia, in contrast, takes a much harder view of such claims.
The second statement is utterly without merit. Even those wholly on the opposite side of his approach to constitutional interpretaion will acknowledge that Scalia is remarkably consistent in his application of his judicial philosohy to his decisions. Where they disagree with him, of course, is in the wisdom of holding such a philosophy in the first place. But scholars ranging from Ronald Dworkin to Mary Ann Glendon to Lawrence Tribe have acknowledged Scalia’s consistent hewing to his judicial ideology, even as they criticize its use.
Thank you for the clarification. It looks like an excellent answer to this layperson. Can you also lend the weight of your experience to the Ops question?
Jim
I think it depends greatly on how and why the issue ends up in front of the Supreme Court.
If the Court is asked to decide a question hinging on executive privilege, Justice Alito, at least, would probably be more sympathetic to that claim than, say, Justice Ginsburg. If the Court is asked to address something like an assertion of Fifth Amendment privilege in the context of a Congressional hearing (think Oliver North), then I might expect to see Justices Roberts and Alito taking a less supportive view of the administration.
In short: it’s really too soon to even ask this question. We have no idea what constitutional clothes will garb the issue when it presents itself.
One thing we know about both Scalia and Alito (and Roberts too, I think) is that they were members of the Federalist Society. Where would the FS stand on executive privilege, the “unitary executive” theory, etc.?
I don’t know that the Federalist Society would take a monolithic stand on either question. Moreover, you could not infer from Federalist Society membership that a particular person would take a particular stand on either of those broad matters. “Executive privilege” in some measure obviously exists, and the question is where the line is drawn. The executive obviously is unitary, uniquely among the three branches of government; what that implies as applied to an actual controversy is not clear until the controversy is fleshed out.
I guess what I meant was that what I remember from the hearings is that neither Roberts nor Alito are fans of the judicary making laws. It seemed to me, from that stance, if the question of executive privilege came up that they would be more likely to rule in accordance to existing cases and laws. So if, say, the President claims executive privilege, but executive privilege is only meant for when national security is at stake (and in this case it is most definitely not) it would seem that the logical way to rule would be that the executive privilege claim has no validity and the subpoena stands.
Does that sound right at all?
Yes as far as it goes… but you’re missing some pieces of the puzzle.
The privilege is not only meant to protect issues of national security: it is intended to protect the ability of the Executrive to function by permitting the advisors to the President to offer candid advice, untempered by political considerations that would apply if their advice were in danger of being made public.
The idea of executive privilege arises from the Constitution’s creation of three independent and co-equal branches of government, and the implication that as a result, each branch must be able operate with some degree of autonomy from the control or supervision of the others within its particular bailiwick.
In general, then, the privilege exists not as a matter of statute, but as a necessary consequence of the structure of government. In US v. Nixon, the Supreme Court essentially accepted this broad principle:
On the other hand, they said that the privilege was not absolute:
We disagree. There are several prudential or justiciability doctrines pursuant to which the court could or should refuse to intervene in a dispute. For example, if the only way to resolve this is to infringe on the authority of either the legislative or executive branch, then the courts will stay out of it. In short, it is glib to suggest that if the courts refuse to get involved they are somehow abdicating authority, particularly since one has only assumed that the courts actually have authority to get involved.
I agree generally with Bricker’s posts here, particularly this:
I was a member of the Federalist Society in law school; they had the best lunchtime speakers (same miserable pizza as everyone else, though), so I joined up.
It wasn’t until many years later that I found out they were actually supposed to be some huge monolith of evil that this liberal should have avoided. I just thought we were interesting. 
We’re talking about a situation where a Bush aide fails to respond to a subpoena and is charged with contempt of Congress. The federal courts have jurisdiction over that, and to adjudicate any constitutional questions the case might present.
The procedure is thus: if the aide fails to respond to the subpoena, it is turned over to the USA for DC; that USA then must present it to a grand jury to charge the aide. As has happened before, however, the USA could refuse to do so (do you see why?). In which case, the House must then charge the aide with contempt; the aide would then be arrested by the House police (or something like that), and brought to the House to testify. In other words, the House can enforce their own subpoena.
But assume that the USA does present to a grand jury, and the grand jury indicts. Who prosecutes? The USA. Do you see how sticky this is for the courts? Given that this really amounts to a power struggle between the legislative and the executive, and given that the legislative has authority to enforce their own subpoena, the judicial could decide under the political question doctrine to stay out of it.
I should emphasize that this is all speculation; as Bricker pointed out, we don’t yet know what gown the old gal will be wearing to the ball.