Judge Alito and the Rule of Law


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.

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7 Responses

  1. Stuart says:

    Well, Dave, if one thinks Roe was a usurpation, then opposing it does support the rule of law, doesn’t it?

    I love being a lawyer. I can argue anything with a straight face.

  2. SCOTUSblog says:

    Blog Round-Up – Tuesday, January 10th

    In nomination news: On Balkinization, Robert Gordon lays out the “Basic Case Against Alito.” Here Sentencing Law & Policy suggests two questions Alito should be asked. On Slate, here is Dahlia Lithwick on “Why Alito needs to talk to us…

  3. N. Nerode says:

    “Rule of Law” means that everyone is subject to the same laws: that no man is above the law, not even the king.

    The trouble is that according to his record, Alito appears to support unfettered Presidential power, which is quintessentially the “rule of men”, not the “rule of law”. 😛 And that is the issue of the day, since Bush has admitted to personally violating the FISA statute, based only on claims of unfettered Presidential power.

    So Alito mustn’t be allowed to get away with claims that he supports the “rule of law”, unless he’s willing to condemn that.

  4. Simon says:

    It seems to me that – in these hearings as in the Roberts hearings – the Senators (to an extent of both parties) demand that Alito defer broadly to Congress, and as narrowly as possible to the President. They demand he give an extremely latitudinarian interpretation of the powers of Congress to pass laws, but a miserly interpretation of the President’s powers to enforce those laws.

    I have also decided that I am going to contribute a token amount to any candidate against Mike DeWine and Charles Grassley, for their comments regarding legislative history.

  5. Alito and the rule of law

    Lots of people have written about Alito’s (basically contentless) assertion that he

    supports the rule of law.

    See, e.g., Mark Tushnet

    and Dan Solove.

    For the record, the headline in the New York Times was

    “Alito Tells Senators That ‘Rule

  6. MJ says:

    “the Judge’s evident disdain for rule of law”

    Classic. The man has been a prosecutor, a U.S. Attorney, worked for the Solicitor General’s Office, and spend 15 years on the federal bench in which he participated in 5,000 cases – and his distain for the rule of law is apparently evident.

    I don’t know what else I would expect from Dave Hoffman and his evident distain for italian- american federal judges.

    Wow. That is easy to do.

  7. Dave Hoffman says:


    In the footnote of the memorandum, in my view, Judge Alito expressed disdain for use of the slogan “rule of law” to defend Roe and its progeny. That is different from saying that he is a lawless jurist, which charge is (evidently) what you mean to rebut by summarizing his resume. As I’m sure our regular readers are aware, I have elsewhere defended Judge Alito against charges of lawlessness.

    The posters on this blog have different views on abusive and generally unconstructive comments. Following my view, I’m going to leave your comment up.