Why Legal Realism Matters

Opinion on Alito::

"YOU CAN'T help doing a double-take when you read Judge Samuel Alito's opinion holding Congress powerless to compel states to provide family medical leave to their employees. It was a position the Supreme Court rejected in a nearly identical case when it held three years later that the 14th Amendment confers such power by authorizing Congress to enforce each state's duty to accord ''equal protection of the laws.'

The evidence and legal arguments hadn't changed when Chief Justice William Rehnquist, writing for the 6-3 majority, saw what Congress had seen: that women and men are unequally protected in a world still shaped by the ''pervasive sex-role stereotype that caring for family members is women's work.' The court accordingly held Congress empowered to ''dismantle persisting gender-based barriers to . . . women in the workplace.' Why, then, did the deliberately deferential Alito, after reading the same text, history, precedents, and factual data, see no gender discrimination for Congress to dismantle?"

--snip--

Alito seems as decent and fair-minded as he is bright, and I don't doubt his sincerity in separating the results he might like to see from those he concludes the law requires. I simply make a plea to quit pretending that law, life, and an individual's unarticulated assumptions about both can be entirely separated when assessing what someone's addition to the Supreme Court would mean for all of us well into the 21st century.

Today's controversies over liberty, equality, personal privacy, and government power have implicated practices from body cavity searches to infrared surveillance of home life to spousal or parental involvement in abortion. Tomorrow's may involve questions about cloning body parts, implanting once-frozen embryos, deploying genetic screening or brain scans, and heaven knows what else. Slogans about just following ''settled law" as though it were a computer application, sticking to the text's ''original meaning" as if that were a matter of scientific fact, never ''legislating from the bench" as if judges ever think they're doing that, remaining within an imagined ''mainstream," and by all means respecting precedent -- particularly so-called ''super-precedent" -- offer precious little insight into how a justice might actually approach these brave new worlds.

A-men.