Justice Alito Inaugurates Drexel Law And Waxes Nostalgic
Spring brings birth and renewal, or in the case of Drexel College of Law, a ribbon cutting ceremony. While the inauguration was symbolic (Drexel Law has, after all, been open for business since August and the building opened in January), Justice Alito Amtrak-ed up to Philadelphia yesterday morning to do the honors. (He was joined by Arlen Specter, among others.)
Alito gave a brief speech, talking about his warm feelings for Philadelphia where he sat on the Third Circuit for many years. He said that he liked to think about that hot summer of 1787 when the founders convened to talk about a constitution. He talked of his great interest in the framers whom he described as men of optimism, tolerance and practicality.
His comments suggested a nostalgia for a time 200-plus years ago when a community of men wrote the paper that the Supreme Court has been interpreting – or is it carving up? – ever since. What do we make of these warm memories? I sensed a reverence for the Constitution – a good thing, it seems to me, for any Supreme Court Justice. But reverence doesn’t tell us much substantively. I also heard a subtle claim that that might suggest Alito relies on original intent not simply because it’s required for legitimacy, but also because framers’ intentions were, at core, good public policy. This is a much less apologetic take on framer’s intent than we often hear. Rather than waxing helpless (“sorry we can’t help you, but we’re stuck with the text we’ve got”) his words suggest that he might add “but even if we could change it, we wouldn’t.”
He provided no specifics, of course, and I am reading between the lines. But this does seem to be the logical next step in conservative constitutional jurisprudence: decisions that don’t just sound in the limits of judicial power, but also in good government. In this view, reference to framers’ intent(s) is simply a way of choosing 18th century “practical and tolerant” wisdom over today’s “jaded, short-sighted” opportunism.
In that sense, perhaps Justice Alito is a judicial Ronald Reagan, looking to bring the good old days back to our constitutional law. For him, Philly circa 1787 was that shining city on the hill. Sadly, those cities are never as wonderful – or just – as they appear at a distance.