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View Diary: ROBERTS AND ALITO: EVASION CONFIRMED (6 comments)

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  •  It was a Chevron case (none)
    I share the concern about Alito, but I think you make a lot more of Gonzales than one should.

    The only issue in this case was whether the AG's Interpretive Rule was entitled to deference under the Chevron doctrine.

    Frankly, the majority stretched quite a bit to avoid  Chevron and one of its progeny, a case called Auer.  

    The majority pulled out all sorts of reasoning as to why Chevron should not apply to give deference to the AG's admittedly "reasonable" interpretation, types of reasoning not normally relevant in a Chevron type case.  Under this doctrine, if the interpretation is entitled to deference, it will stand as long as its reasonable, even if the court would reach a different construction.

    Really, Scalia's dissent is much more in line with the Chevron line of cases.  I don't think it's any surprise that Roberts would vote to follow Chevron and not bend over backwards to avoid its implications.

    If any opinion is more "results-oriented," in the sense that it really avoids precedent, it is by far Kennedy's opinion for the Court.

    Not that I have a problem with that result.  It's what I favor, and I find the reasons for avoiding Chevron mostly convincing.  I wish the court would redefine Chevron and make clear that nondelegation concerns will trump agency interpretations in certain situations.  

    But, if I felt the other way about the result, I might call the Gonzales decision a case of "judicial activism."

    So I think that all it says about Roberts is that he favored applying Chevron the way it usually is applied in these cases. It doesn't necessarily say that he's against state's rights when it suits his purposes.  The federalism question was NOT before the court.  It was only a question about deference to the AG's interpretation.

    That said, the case against Alito is strong and the circumstances dire, without regard to Roberts or any of the rest of the court, really.  He's extreme, period.  I think Roberts will be very close to Rehnquist and we probably can't complain there, being that a Repub had the nomination.  But Alito is probably most equal to Thomas, and he would replace O'Connor.  

    In fact, I think what I mean in part is that Alito is so beyond the pale that comparing him with Roberts is probably way too unfair to Roberts.  Alito's record shows him for what he is--a right wing judicial activist.  Roberts doesn't have much record, but you get the feeling he isn't as much a "movement conservative" type activist as is Alito.

    Anyway, I supported the Roberts nomination but I strongly oppose Alito.  Roberts for Rehnquist was an OK deal; Alito for O'Connor will in many ways be a travesty for our democracy.

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