As I write, Samuel Alito appears to be on his way to confirmation to the U.S. Supreme Court. It is instructive to dissect the liberal arguments against this conservative nominee. To sum them up from what I’ve seen, read, and heard, they are two: first, that Alito believes the state may prohibit abortion; and, second, that he believes the president may make sweeping decisions during a state of undeclared war.
The first was expected: we have been talking about Roe v. Wade for years. But to the public, the case of Youngstown Sheet & Tube v. Sawyer is not so familiar. That was the 1952 case over President Truman’s seizure of the steel mills to stop a strike during the Korean War.
Both of these cases turn on libertarian concerns: one on an individual’s right to make a medical decision and another on a company’s right not to have its property seized by presidential order. There were other objections to Alito, to be sure, but none as loud as these two, which are cases in which most libertarians agree with liberals.
What this hides is that committed left-liberals – that is, liberals who understand their own doctrine – favor an expansive state. They want to keep the New Deal interpretation of the commerce clause, which allows the federal government any quasi-economic regulation it can think of – which is why the liberal justices (Breyer, Souter, Stevens and Ginsburg) did not side with a long-suffering medical-marijuana patient in Gonzales v. Raich. Liberals don’t like to talk about Raich. They don’t like to talk about other exercises of federal power, such as gun control, in which conservatives are on the side of the individual and liberals are not. At least they don’t like to talk about those things when a seat on the Supreme Court is up. Then they want to win, and they win by painting the appointee as an authoritarian – which maybe on these matters he is.
The selection of issues is revealing. There is a face of modern liberalism that stands for freedom, and that is the face they show in a great battle for public approval.