I was wrong.
In this post, I predicted that because of a footnote in a 1985 strategy memo, Judge Alito would be unlikely to find much rhetorical purchase by making “paeans to the rule of law” in his confirmation hearing. Indeed, given the Judge’s evident disdain for rule of law and precedent-based defenses of Roe, I thought that the footnote might force Judge Alito to “actually say that he believes Roe should be reversed.”
Today’s headline from the Times:
“Alito Tells Senators That ‘Rule of Law’ Is Paramount”.
That will teach me to try to read tea leaves. It also suggests the tremendous rhetorical flexibility of the concept of the “rule of law.” Now, Nate has already once taken Kaimi and I to task for our co-authored paper that had suggested the “rule of law” is almost entirely a contentless political slogan. Nevertheless, it it still evident to me that appeals to the “rule of law” in the context of public debate are almost always a form of constitutional puffery. Which probably helps to explain why Judge Alito’s “Footnote 10” problem isn’t much of one after all.