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Thursday, January 19, 2006

Judge Alito as an Oakeshottian

On the Volokh Conspiracy blog, Orin Kerr has asked the question How conservative is Sam Alito?

My answer to the question is that Judge Alito will jurisprudentially be most similar to Chief Justice Rehnquist. As has been written about in the media, Chief Justice Rehnquist began a thesis on conservative political theorist Michael Oakeshott while at Harvard; Oakeshott emphasized the centrality of tradition for stability and continuity in politics and society. Oakeshott is very Burkean in that respect. Here is a link to the Michael Oakeshott Association.

Chief Justice Rehnquist's jurisprudence seems to have soaked up a lot of Oakeshottian political theory. His dissents on the conservative side always seemed to be very dispassionate -- arguing for what politically can be deemed the "conservative" side, but always from a position of minimalism, not extremism. When it was prudent to maintain stare decisis, Chief Justice Rehnquist's majority opinions in the Dickerson case (upholding Miranda) and the Hibbs case (upholding the Family and Medical Leave Act in the face of an 11th Amendment challenge from Nevada) reflect these values. I believe Judge Alito will also share these Oakeshottian values.


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