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Samuel Alito, lurker

By Jack M. Balkin

I learned last week from a reporter who called me that Justice Alito had selected me out for gentle (or not-so-gentle) comment while giving at speech I believe at the annual Robert L. Bartley Dinner sponsored by the conservative magazine The American Spectator. (I wonder, incidentally, what the reaction of our conservative friends would be if, say, Ruth Bader Ginsburg showed up to give a speech at a dinner sponsored by The Nation, but I digress.....)

Justice Alito apparently is a lurker on legal blog sites, perhaps including this one. In any event, he made mention of my strong criticism of both the Scalia and Stevens opinions--he, of course, joined in the former--in Heller because of their formal commitment to "originalism" as a method and, more to the point, their demonstrable incompetence in carrying out the kind of nuanced historical inquiry that one might be believe to be part of the "originalist" project. He also apparently identified me as a supporter of the DC ordinance that was struck down, though he did note, accurately, that I had expressed pleasure in the de-facto gift that was given to the Democratic Party (and to Barack Obama) by the majority decision striking down the ordinance and, therefore, basically minimizing guns as an issue in the presidential election. Though the latter is certainly correct, the former is not: That is, I publicly suggested, in an op-ed, ?Why use originalism?? National Law Journal, February 25, 2008 (unfortunately, no hyperlink is available) , that the Court embrace the excellent brief submitted by Solicitor General Paul Clement in behalf of the Bush Administration. In that piece, moreover, I suggested, as has Akhil Amar in the current issue of the Harvard Law Review, that a far stronger defense of the outcome could be found in a "living" or "dynamic" Constitution that didn't stop in 1791.

But Justice Alito also apparently suggested that my criticism of the professional incompetence (from the standpoint of trained historians) was vitiated by the fact that I myself am not a professionally trained historian. My own Ph.D. is in political science, not history. He apparently used this as an occasion to jibe at law professors (especially those who blog?) as quite willing to opine on subjects on which they are not professionally competent. There is, of course, much truth in what Justice Alito says, and I am sure that I can legitimately be criticized on those grounds. Mark Tushnet has coined the term "the lawyer [or law professor] as astrophysicist" to describe the their pretensions to understand very complex bodies of thought after relatively minimal study.

What I find disturbing, though, and therefore worth this otherwise self-indulgent posting, is Justice Alito's apparent unwillingness to mention Jack Rakove's post on this site, tellingly titled "Thoughts on Heller from a "Real Historian," that states, among other things,
"I agree with Mark [Tushnet] that neither of the two main opinions in Heller would pass muster as serious historical writing, but I would disagree with Sandy that the two opinions are equally incompetent."

I.e., Jack Rakove, who of course won a Pulitzer Prize in history and has taught American history at Stanford for decades, believes that the Stevens opinion, whatever its inadequacies, is less egregious than is Scalia's, which may be true. But to get a D rather than an F shouldn't be good enough for Supreme Court opinions that affect people's rights and lives.

Be that as it may, if Justice Alito was aware of such criticisms as those offered by Rakove or by, say, Saul Cornell and other professional historians, and if was aware that, at least to my knowledge, not a single professional historian has offered kudos to Justice Scalia's opinion (that Justice Alito signed), then, to put the matter gently, he knowingly and deliberately suppressed relevant evidence in order to score a cheap point by pretending that the only critic(s) of the opinion(s) lacked the same professional training as did the relevant Justices. But, as indicated, that is demonstrably false.

I don't want to make a mountain out of a molehill, and I confess to a certain amount of pleasure at being mentioned by Justice Alito (whom I've never met); my general view is that all publicity is good publicity, unless I am described as being "stupid," which Justice Alito did not do. Still, I do think that this anecdote, if that's the right word, does reveal something about the current state of debate about the Court and its handiwork, where even a Supreme Court Justice, speaking in front of a hyper-partisan audience--see, e.g., R Emmett Tyrrell, Jr.'s speech, which begins with a reference to the "lamentable election"--gets one important fact totally wrong and, more to the point, engages in a highly selective presentation of relevant evidence. And I wonder, incidentally, if anyone bothered to note, should Justice Alito have entertained any questions, the savage criticism of Heller penned by Fourth Circuit Judge J. Harvie Wilkinson, who can scarcely be dismissed a just another lefty law professor/blogger with too much time on his or her hands.

Should Justice Alito wish to offer any further reflections--perhaps emulating Richard Posner, whose duties as a federal judges certainly don't prevent him from authoring extremely interesting and provocative blogposts (not to mention articles and books) on various issues of the day (including, of course, Heller, about which he was also savagely critical--I'm sure that Jack Balkin would welcome him as a guest contributor (though perhaps he'd feel more comfortable at the Volokh Conspiracy).

Full post as published by Balkinization on December 06, 2008 (boomark / email).