"Samuel Alitos America, Revisited"
The libertarians at Hit and Run have produced a point-by-point rebuttal to our earlier post, Samuel Alito’s America. Our original post runs through a number of Alito’s decisions with headlines that suggest Alito’s confirmation would have broad policy implications. (For example: “ALITO WOULD ALLOW RACE-BASED DISCRIMINATION.”)
Hit and Run responds to each of our points by noting that Alito didn’t make a broad policy pronouncement but decided how the law should be applied in a specific case. In Bray v. Marriott Hotels, for example, Hit and Run notes that Alito never says he would “allow race-based discrimination.” Rather, according to Hit and Run, Alito argues one “might think the hotel’s stated reasons for promoting someone else are weak, but that this isn’t enough to show they were pretextual.”
Hit and Run’s argument has some intuitive appeal but, in the end, misses the point. When a judge consistently applies to law to the facts in a certain way it has broad policy impacts. To pretend otherwise is foolish. For example, if Alito’s interpretation of the law in Bray v. Marriott was accepted it would “immunize an employer from the reach of Title VII [even] if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias.” In other words, racial discrimination would be allowed.
That’s not our opinion, that’s the opinion of the majority in the United States Court of Appeals for the Third Circuit. And that’s Samuel Alito’s America.
UPDATE: Hit and Run responds to our response.