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Beyond media impressions

Observer Viewpoint | Thursday, November 3, 2005

Nov. 1’s editorial cartoon featured a bloated body with two heads, labeled “Scalia” and “Thomas,” with an open spot for a third head labeled “Alito.” Presumably the cartoonist meant that all three jurists were interchangeable clones who advanced identical (and evidently unacceptable) views.

Whatever that insinuation’s value as a political slam, as a legal matter it is simply incorrect. Alito has not always followed Scalia. Although Alito dissented in Casey, he later voted against a New Jersey limitation on abortion he considered inconsistent with precedent. In Thomas v. Commissioner, Alito allowed a fired employee to sue her former employer for discrimination. Scalia sharply reversed Alito’s decision.

Nor would Scalia always vote with Alito. Justice Scalia cast the tiebreaking vote finding a ban on flag-burning unconstitutional, limiting the protections of the Free Exercise Clause to religious believers, and striking down mandatory prison sentencing. Those decisions dismayed political conservatives and were probably inconsistent with Scalia’s own opinions. But Scalia ruled as he believed the law required which shows he is not the right-wing hack some suggest.

If confirmed, perhaps Alito will disagree with Scalia on these issues; perhaps he will not. No doubt the men will often vote together. But they will not always vote together, nor will they always vote the way political conservatives might like. Reject Alito or another judge if you must. But first respect them as individuals and evaluate them fairly by studying all of their cases, rather than resorting to petty and inaccurate stereotypes.

David Mathuesgraduate studentOff-campusNov. 2