LIBERTARIAN-LEANING JUSTICE

The original attribution: Ilya Somin, assistant professor at the George Mason School
of Law.

"Most debate about Supreme Court nominee Samuel Alito has focused on his propensity to vote to overrule Roe v. Wade and the similarity between him and conservative Justice Antonin Scalia. But despite the superficial parallels between the two conservative, Italian-American Catholic jurists, it is important to recognize that Alito has a substantial libertarian dimension to his jurisprudence as well as a conservative one. In several key fields of law, he is more likely than Scalia and other conservatives to be skeptical of assertions of government power. More important, there is much in his record that should appeal to libertarians...

"While judges should not simply vote for whatever outcomes because they prefer them on policy grounds, a libertarian orientation helps sensitize jurists to the fact that the Constitution is meant to constrain government, not just empower electoral majorities, as some conservatives claim. Here Alito's libertarian streak and his differences with Scalia may have an impact.

"...Obviously, Alito is far from being an across-the-board libertarian. But there is much for libertarians to like in his record, more than in the case of Scalia. Liberals understandably have less reason to support Alito than libertarians do. But they should think seriously about whether they would rather have a conservative with a significant libertarian streak like Alito or a pro-government conservative who will be just as likely to overturn Roe, but less likely to vote to restrict government power over religious freedom, free speech, or immigration."

Reactions welcomed, of course.