Professor Laurence Tribe has a very good Op-Ed piece on Judge Samuel Alito's opinion in the Third Circuit FMLA case,
Chittister and his dissent in
Casey. Tribe gets to the nub of what this case may tell us about Alito's judicial "philosophy":
My concern here isn't that Alito miscalculated the trajectory of the Supreme Court's evolving ''undue burden" standard for abortion restrictions, or even that he may inadvertently have revealed a readiness to overrule or severely limit Roe if given the opportunity -- something I suspect senators will spend much time pressing him, no doubt unsuccessfully, to confess or to deny.
I do wonder, though, about the window through which Alito was gazing at the social world in which the controversy arose. Was he perhaps viewing the ''burden" on married women in this situation as simply their due, as something that goes with the territory when a woman weds and thus, almost by definition, as no ''undue" burden? That would accord with Alito's opinions finding it only natural to permit a husband, but not a fiancee, to contest a woman's deportation to a jurisdiction threatening coerced abortion of the couple's unborn child. And didn't the distinctive burdens women face in juggling work and family likewise recede for the judge into something like a natural background he deemed Congress powerless to treat as legal inequality?
Alito seems as decent and fair-minded as he is bright, and I don't doubt his sincerity in separating the results he might like to see from those he concludes the law requires. I simply make a plea to quit pretending that law, life, and an individual's unarticulated assumptions about both can be entirely separated when assessing what someone's addition to the Supreme Court would mean for all of us well into the 21st century.
Tribe echoes the main theme of Legal Realism, which holds that the idea of judges neutrally reading text is a sham:
Legal realism holds that judges do more than apply law; they make law, and in fact, have vast amounts of discretion. Only by studying judicial action, or consequences, can the legal system be seen as anything more than a set of rules on paper. The most distinctive legal realist was Justice Oliver Wendell Holmes, widely regarded as the wisest lawyer in American history. . . . He denied that the law followed any sense of mechanical logic . . . A contemporary of Holmes was the Harvard jurist, Roscoe Pound, widely regarded as the founder of American sociological jurisprudence. His is known mainly for his attacks on mechanical jurisprudence, and his insistence that the law ought to be made responsive to the practical needs of society. Any changes in society necessitate change in law. The law must be stable, but it must also not stand still. . . . If the law is to survive, it must adapt to its environment. Legal reform is as old as history; as long as civilization keeps moving, the law must move with it.
. . . Other legal realists included Karl Llewellyn, Herman Oliphant, Felix Cohen, Underhill Moore, Hessel Yntema, Jerome Frank, and Justice Benjamin Cardozo. All had different things to say or prove, such as Karl Llewellyn, who showed how precedent could be used to justify a judicial decision either way, or Jerome Frank, who argued that courts do not actually consider facts, only selective information far removed from original events. Hence, the uncertainty, unreliability, and adversarial stress of the fact-finding mission proved that there was no way to attribute logic or predictability to judicial decision-making.
It is through this prism that it is necessary to judge Alito, as it was with Roberts. The Senate failed in this task with Roberts. Will it do so with Alito as well?