# Now serving #3... Samuel Alito **URL:** \ **Category:** Great Debates\ **Created:** [October 31, 2005, 12:46pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702 "2005-10-31T12:46:56Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![AHunter3](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ahunter3/32/368_2.png) [@AHunter3](https://boards.straightdope.com/u/AHunter3)\ **Post date:** [October 31, 2005, 7:58pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/101 "2005-10-31T19:58:36Z")
Dangit. Gotta do that Evelyn Woods thing, I guess. ☹ ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 31, 2005, 8:01pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/102 "2005-10-31T20:01:32Z")
> [@Evil Captor](#): > > And how can we know that judges aren’t using “strict constructionism” as cover for deciding however they’d like to anyway, especially given that so often the “strict constructyionism” decisions coincide with what you’d expect from a social conservative? Tends to make us on the left rather suspicious, for some reason. Because the use of textualism, as a general rule, provides a more solidly objective process for reaching a result. ---
**Author:** ![AHunter3](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ahunter3/32/368_2.png) [@AHunter3](https://boards.straightdope.com/u/AHunter3)\ **Post date:** [October 31, 2005, 8:10pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/103 "2005-10-31T20:10:12Z")
**Left Hand of Dorkness** : > [@](#): > > It seems to me that Alito was saying that, if I hate Mexicans with all my heart, and a Mexican guy applies for a job as database designer at my company, and he’s unable to figure out how to turn the computer on, he can’t claim racial discrimination when I don’t hire him, since my legitimate reason (his incompetence with computers) remains intact, even if I probably wouldn’t have hired him anyways. I read it more as: if I hate Mexicans with all my heart, and a Mexican guy applies for a job as a database designer and I look at his sample query scripts and his history of work in the field and I decided he just wasn’t really qualified, we gotta look for someone else, the Mexican guy can’t claim racial discrimination when I don’t hire him since I’m citing non-racist reasons for having decided he wasn’t really qualified. In the case cited, the black applicant was rejected as “unqualified” even though taken by themselves her qualifications seem adequate (by Marriott’s standards). Court didn’t say they could not reject her as unqualified _at all_, nor did it say that an allegation of racism in such circumstances must always stand, but rather that there was sufficient believable reason to think racism had played a part, and that to point to objective criteria as the reason for her not getting the position wasn’t sufficient to demonstrate that those were indeed the reasons. What Alito was saying might in essence mean, “If you have an excuse for discriminating other than the illegal biased discriminatory reason, you can discriminate on the excuse-reason and not be held accountable for whatever role illegal bias may have played here”. That’s what the majority felt it amounted to. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 8:18pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/104 "2005-10-31T20:18:06Z")
> [@AHunter3](#): > > What Alito was saying might in essence mean, “If you have an excuse for discriminating other than the illegal biased discriminatory reason, you can discriminate on the excuse-reason and not be held accountable for whatever role illegal bias may have played here”. That’s what the majority felt it amounted to. Is the opposite position that a nonracist may refuse to hire someone for any old dumbshit reason, but a racist must offer a non-dumbshit reason for not hiring someone? Daniel ---
**Author:** ![AHunter3](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ahunter3/32/368_2.png) [@AHunter3](https://boards.straightdope.com/u/AHunter3)\ **Post date:** [October 31, 2005, 8:19pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/105 "2005-10-31T20:19:24Z")
Or, as the majority put it (better than I did): > [@](#): > > The issue is not whether the court can find a legitimate reason why Marriott could have promoted Riehle but whether Marriott had a legitimate reason that was not the result of racial animus. “[T]he judge’s function is not to weigh the evidence and determine the truth of the matter, but rather to determine if there is a genuine issue for trial. The district court cannot decide issues of fact at the summary judgment stage.” Both the actions of the majority and the statements that comprise the dissent need to be understood in the context of ruling on a _summary judgment_. ---
**Author:** ![Sal\_Ammoniac](https://avatars.discourse-cdn.com/v4/letter/s/8dc957/32.png) [@Sal\_Ammoniac](https://boards.straightdope.com/u/Sal_Ammoniac)\ **Post date:** [October 31, 2005, 8:22pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/106 "2005-10-31T20:22:07Z")
Alito’s Bray v. Marriott dissent could be read as indicating nothing about his attitudes toward race, and everything about his pro-business mindset and his reluctance to let the courts interfere with “business judgment.” I have contended all along that Bush is more a creature of big-business interests than he is of the religious right. The Alito nomination looks like confirmation. I’m curious what the religious right will think of him. It’s pretty clear to me that he’s not _one of them_, but it could be that all they care about is Roe. If that’s the case, he’s probably their man. At least until further revelations! ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [October 31, 2005, 8:25pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/107 "2005-10-31T20:25:12Z")
> [@Evil Captor](#): > > And how can we know that judges aren’t using “strict constructionism” as cover for deciding however they’d like to anyway, especially given that so often the “strict constructyionism” decisions coincide with what you’d expect from a social conservative? Because by definition a strict constructionist can always point directly to the part of the Constitution that supports the decision. It is the ones basing their decisions on emanating penumbrae and the like that need to incur our suspicions - I disremember any liberal justice finding a right to keep and bear arms, or a fetal right to life, anywhere under substantive due process or suchlike. Somehow or other, all these “rights” that seem to appear so magically once a certain kind of legal scholar unleashes their fertile imaginations always come off the liberal playbook. If you can imagine. 😉 > [@](#): > > I could similarly see a violation of the fourteenth amendment: are men ever required to consult with their wives before receiving a medical treatment? I don’t believe it was a legal requirement, but I had to produce a permission slip signed by my wife before the doctor would do my vasectomy. Regards, Shodan ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 8:41pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/108 "2005-10-31T20:41:23Z")
> [@Shodan](#): > > I don’t believe it was a legal requirement, but I had to produce a permission slip signed by my wife before the doctor would [snip] Really? That’s pretty surprising–what would he have done if you’d been unmarried? Daniel ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [October 31, 2005, 8:42pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/109 "2005-10-31T20:42:36Z")
> [@Shodan](#): > > I don’t believe it was a legal requirement, but I had to produce a permission slip signed by my wife before the doctor would do my vasectomy. A cad is a man who doesn’t tell his wife he’s sterile until after she’s pregnant. 😃 ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 31, 2005, 8:49pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/110 "2005-10-31T20:49:22Z")
> [@AHunter3](#): > > What Alito was saying might in essence mean, “If you have an excuse for discriminating other than the illegal biased discriminatory reason, you can discriminate on the excuse-reason and not be held accountable for whatever role illegal bias may have played here”. That’s what the majority felt it amounted to. That might also indicate how he’d rule on gay marriage - that a state’s ability to dream up a superficially-nondiscriminatory excuse for banning it, however flimsy and bullshitty and totally ad hoc, is enough reason to keep on discriminating. That would be true of any other equal protection issues, if he’s consistent. Let’s hope it doesn’t come down to single issues that generate much more heat than light, however. It’s enough to consider a candidate philosophically unqualified for what is indeed a “superlegislature” that “can do whatever it wants to” (sorry, **Bricker** , but that’s just what the SCOTUS _is_) if he’s willing to ignore or even reverse essentially the entire 20th century of jurisprudence in the service of an obsolete and idiosyncratic POV that disagrees with it, precedent and stare decisis be damned. _That_ would be judicial activism in the extreme, and it continues to puzzle me how one could be for that and still opposed to “JA” under any definition. If that’s who this guy is, he needs to be turned down for the sake of the country just as Bork needed to be turned down, and that’s what the Democratic leadership is sounding like they plan to do. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [October 31, 2005, 8:51pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/111 "2005-10-31T20:51:52Z")
> [@Left Hand of Dorkness](#): > > Really? That’s pretty surprising–what would he have done if you’d been unmarried? > > Daniel No idea. There was also a waiting period. A week, IIRC. As I say, I don’t think any of this was required by law. Regards, Shodan ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 9:03pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/112 "2005-10-31T21:03:54Z")
> [@Shodan](#): > > No idea. There was also a waiting period. A week, IIRC. Good grief. You want to pack heat, you gotta wait seven days. You wanna shoot blanks, you gotta wait seven days. Man can’t win for losing. Daniel ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 31, 2005, 9:07pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/113 "2005-10-31T21:07:25Z")
> [@Shodan](#): > > Because by definition a strict constructionist can always point directly to the part of the Constitution that supports the decision. It is the ones basing their decisions on emanating penumbrae and the like that need to incur our suspicions - I disremember any liberal justice finding a right to keep and bear arms, or a fetal right to life, anywhere under substantive due process or suchlike. > > Somehow or other, all these “rights” that seem to appear so magically once a certain kind of legal scholar unleashes their fertile imaginations always come off the liberal playbook. > > If you can imagine. 😉 > I don’t believe it was a legal requirement, but I had to produce a permission slip signed by my wife before the doctor would do my vasectomy. > > Regards, > Shodan Okay, then. Let’s play strict constructionist, textualist mode: Abortion is legal. Amendment IV’s guarantee of the right to be secure in one’s **person** against searches and seizures. If the requirement by law that one must provide one’s body to house another person for the duration of his/her gestation is not a “taking” in the legal sense, I’d be hard put to come up with a working definition other than the bar on “legal kidnapping” without criminal-accusation justification. Child pornography is legal; so is open advocacy of revolution. Amendment I gives **no** exceptions to freedom of speech or of the press. All those “clear and present danger” and “community standards” exceptions are penumbrae and emanations. (Paging Hugo Black!) Conviction, or even trial, by both federal and state courts for the same allegedly-criminal act is illegal. Amendments V and XIV ban double jeopardy. The exception that different jurisdictions can retry is another penumbra. Gay marriage is legal. Equal protection clause of Amendment XIV says so. The oddball tests concocted by constitutional lawyers on levels of scrutiny are, guess what, **not in the text**. Two sets of two people being treated differently is clearly a violation of equal protection. (By the way, Federal DOMA is unconstitutional. Article IV does **not** authorize Congress to pass it.) State laws regulating firearms are illegal. Privileges and Immunities Clause of Amentment XIV, combined with Amenment II. As a matter of fact, the guarantees of Amendments II through VIII don’t **say** they’re talking about the Federal government; construing them to do so is traditional, but, you guessed it, it’s another one of those penumbrae. And finally: Amendment IX actually means something. It says, in so many words, just because we didn’t think to include a verbatim guarantee of a right doesn’t mean that it’s not a right. So the door is wide open for judicial activism about rights. Because the Constitution explicitly says so. Care to rethink your ideas about strict constructionism? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [October 31, 2005, 9:33pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/114 "2005-10-31T21:33:15Z")
> [@Polycarp](#): > > And finally: Amendment IX actually means something. It says, in so many words, just because we didn’t think to include a verbatim guarantee of a right doesn’t mean that it’s not a right. So the door is wide open for judicial activism about rights. Because the Constitution explicitly says so. > > Care to rethink your ideas about strict constructionism? No, the Tenth Amendment is the one that you left out. Because the Constitution doesn’t say a fricking word establishing **judicial** activism as a source of rights. It says that it is the states or the people who can be “activists” about rights. Not judges. So that door slams shut in your face pretty hard. Sorry about that. The rest of your “analysis” is pretty hit and miss. The big error you are making is to assume that the Constitution establishes things it doesn’t address - like gay marriage. The federal courts may not forbid gay marriage, I agree with you on that. They may not establish it either. Remember that Tenth Amendment I mentioned? Slam again. So this part: > [@](#): > > The oddball tests concocted by constitutional lawyers on levels of scrutiny are, guess what, not in the text. is quite correct. Therefore, someone bringing suit in federal court to stop a state from establishing gay marriage should be kicked out. And guess what - if he wanted to force a state to recognize his gay marriage, he should get the same treatment. Same thing for abortion. States may regulate, the feds may not - the Constitution doesn’t establish any duty by the federal courts to regulate abortion. > [@](#): > > Conviction, or even trial, by both federal and state courts for the same allegedly-criminal act is illegal. Amendments V and XIV ban double jeopardy. The exception that different jurisdictions can retry is another penumbra. Works for me. Regards, Shodan ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 9:38pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/115 "2005-10-31T21:38:10Z")
> [@Shodan](#): > > The rest of your “analysis” is pretty hit and miss. Just for those of us playing along at home, you agree that child pornography and advocating violent revolution ought to be legal? That’s the one that I think creates the most trouble for a strict constructionist. Daniel ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 31, 2005, 9:39pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/116 "2005-10-31T21:39:47Z")
> [@Bricker](#): > > Because the use of textualism, as a general rule, provides a more solidly objective process for reaching a result. Or, alternatively, provides a rationale for justifying opinions already dearly held. The “objectivity” you speak of is little more than interpretation given another name, the exclusionary principle writ large. The famous Borkery about there being no right to privacy in the Constitution leaps to mind. Most reasonable persons assume a right to privacy exists, simply because a civilized life would be near impossible without it, and a state that can deny such privacy is well along towards tyranny. That the Constitution does not explicitly state such a right can be reasonably held to be an ommission on the part of the Founding Fuckups. Or, alternatively, one can reasonably argue that the right to privacy is the very foundation of the right to be free of unreasonable search. After all, is not an unreasonable search nothing more than an unjustifiable abridgement of the right to privacy, whether or not that right is explicitly stated? Might we not reasonably infer that they regarded some rights as being so fundamentally obvious as to not require explicit enumeration? Similarly, the right to control ones own body and the reproductive processes thereof is fundamental enough to be presumed. Only if we are willing to assume that the Constitution _creates_ the rights we hold to be self-evident can we pretend that they cease to exist if denied the approval of the FFs. Only if the Constitution were written with utter clarity that permitted no disagreement as to meaning could the “textualist” argument hold any special significance. Given that intelligent scholars and reasoning lawyers have, indeed, derived different “interpretations” is reason enough for us to believe that such is possible, hence, legitimate. And if seeing “penumbra” is as legitimate and intelligent a position as any other, then it necessarily follows that “textualism” has no special mojo, it is not a trump card to be played in order to thwart progress and/or change one finds disagreeable. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 9:42pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/117 "2005-10-31T21:42:13Z")
> [@Left Hand of Dorkness](#): > > Just for those of us playing along at home, you agree that child pornography and advocating violent revolution ought to be legal? Small words can create big rudeness. This should read, **do** you agree…? I’m almost certain that you don’t agree, and I don’t want to cast you in with child pornographers; instead, I want to hear your reasons for believing that a strict reading of the constitution allows the outlawing of distributing child pornography. (Note the “distributing” part–I think a strict constructionist can outlaw the production of most child porn). Daniel ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [October 31, 2005, 10:00pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/118 "2005-10-31T22:00:14Z")
> [@Left Hand of Dorkness](#): > > Just for those of us playing along at home, you agree that child pornography and advocating violent revolution ought to be legal? That’s the one that I think creates the most trouble for a strict constructionist. > > **on preview, you also said this:** > > Small words can create big rudeness. This should read, do you agree…? > > I’m almost certain that you don’t agree, and I don’t want to cast you in with child pornographers; instead, I want to hear your reasons for believing that a strict reading of the constitution allows the outlawing of distributing child pornography. (Note the “distributing” part–I think a strict constructionist can outlaw the production of most child porn). No harm, no foul - I understood what you meant. Actually, I was trying to formulate the reasons that I thought outlawing the production was legitimate. Once I did that, I was going to say that the distribution of such material would be outlawable because it furthered the already-illegitimate production. [del]To stall while I attempt to formulate my position[/del] In order to be sure we understand each other 😃 on what grounds do you think kiddie porn is outlawable _as a Constitutional issue_? I was going to say that it, too, was a state’s issue, since age of consent is set by the states. Thus nobody could either outlaw kiddie porn, nor force it to be allowed, under the First Amendment. If it helps, I will stipulate that porn in general is not outlawable by the Feds, except if it is part of interstate commerce. If a person wants to keep a locally produced stash of fifty issues of Cheerleaders in Heat, the Supreme Court has nothing to say to him. I will attempt to return to this thread later, if trick-or-treat does not interfere. It is an interesting question, and I have not fully thought thru my position. Regards, Shodan ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 10:07pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/119 "2005-10-31T22:07:15Z")
> [@Shodan](#): > > Actually, I was trying to formulate the reasons that I thought outlawing the production was legitimate. Once I did that, I was going to say that the distribution of such material would be outlawable because it furthered the already-illegitimate production. > > [del]To stall while I attempt to formulate my position[/del] In order to be sure we understand each other 😃 on what grounds do you think kiddie porn is outlawable _as a Constitutional issue_? I was going to say that it, too, was a state’s issue, since age of consent is set by the states. Thus nobody could either outlaw kiddie porn, nor force it to be allowed, under the First Amendment. **Scott Plaid** , if you’re reading this, this is how to use the strikethrough feature ;). From my standpoint, the courts have some leeway to interpret the Constitution. They’re allowed to say, “Okay, freedom of speech is fine and all, but distributing kiddie porn is taking freedom of the press too far, since it inherently profits off of harming people and encourages future harm.” Similarly, they can say, “It’s dumb for the Constitution to protect speech which creates a clear and present danger.” The courts may, in other words, interpret the constitution as a living document. If the courts may interpret certain rights narrowly (e.g., saying that freedom of speech isn’t absolute), it’s difficult to imagine that they cannot interpret other rights widely. If they are unable to move in both directions, then the history of the country would end up being one of rights perpetually diminishing in power, and that’s not a very good model. If they do not have latitude in interpreting rights, then we get some very uncomfortable results. Daniel ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [October 31, 2005, 10:09pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/120 "2005-10-31T22:09:02Z")
> [@Shodan](#): > > No, the Tenth Amendment is the one that you left out. Because the Constitution doesn’t say a fricking word establishing **judicial** activism as a source of rights. It says that it is the states or the people who can be “activists” about rights. Not judges. So that door slams shut in your face pretty hard. Sorry about that. Oh, give me a break. This is sophistry. The judges are the ones who are there to interpret what rights we have from the Constitution. You are not only slamming the door on judicial activism; you are slamming the door on the whole freakin’ judicial branch (at least related to Constitutional law). You might as well have them close their doors and head home (or at least, restrict their rulings to just interpretting laws written by legislators). [Previous page](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702.md?page=5) [Next page](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702.md?page=7)