Justice Brennan’s Evil Twin

The small band of people arguing that Sam Alito would be anything but a catastrophe for liberal constitutional values had very few arguments available to them, given the overwhelming evidence that he would be (including the extremely high esteem in which Alito is held by those who despise the achievements of the Warren and early Burger Courts.) One strategy, favored by Ann Althouse, was to assert that liberals “may discover that there are varieties of judicial conservatives, just as there are varieties of political conservatives, and that Samuel Alito is not Antonin Scalia” without citing a single area of law where Altio is likely to be more liberal than Scalia. (The reverse, conversely, is quite easy.) Obviously, this is not worth taking seriously. The other strategy — favored by the likes of Akiba Covitz and Stuart Taylor — was to claim that Alito would be to the left of Scalia because he was more “congenial” and less prone to the broad pronouncements and acerbic rhetoric of Scalia. This is both true and entirely beside the point. Yes, his strategy is to avoid Scalia’s culture warrior posing and rather — like a bizarro world William Brennan, gone over to the dark side — to cobble together precedents while subtly pushing them towards his ideological preferences, with an extra soupcon of bad faith.

His opinion yesterday in Ledbetter is a classic case in point. Alito, before citing a precedent, blandly asserts that Ledbetter’s “argument is squarely foreclosed by our precedents” and that “It would be difficult to speak to the point more directly.” But the precedent cited — which involves a case in which a woman resigned because if a discriminatory policy, and then sued for back pay after being hired several years later — is hardly a “square” or “direct” analogy (or, as Alito claims, “basically the same” argument.) That case dealt with two discrete acts, with the potential discrimination of the first resignation more more transparent than relative pay discrimination between employees. The precedent is a point in the company’s favor, but nothing more than that; it’s hardly controlling. The Morgan case cited by the dissenters — which involved non-discrete, ongoing discrimination — is at least as relevant, and it seems to me much more so. Alito’s bland rhetoric conceals characterizations of precedents that are tendentious in the extreme.

So, yes, Altio’s measured tones don’t have any of the quotable “Kulturkampf” rhetoric of a Scalia opinion; there’s nothing about gender discrimination being a glorious American tradition or something. This doesn’t make him better than Scalia to people oppose gender discrimination, however. It makes him even more dangerous.