Friday, January 13, 2006

ALITO: ashwanderism

HATCH: Another place in which you have written about what might be called judicial philosophy is in your opinions; not that you've spent much time opining about such matters in the abstract. Nevertheless, I would like you to expand a little on a few of the things you have written in this regard.

For instance, in New Jersey Payphone Association v. Town of West New York -- this was a 2002 case -- for example, you wrote the following. Quote, "It is well established that when possible federal courts should generally base their decisions on nonconstitutional rather than constitutional grounds. The rationale behind the doctrine of avoiding constitutional questions except as a last resort are grounded in fundamental constitutional principles," unquote.

Can you explain those fundamental principles and whether you think the Supreme Court, as well as the appeals court, should follow this imperative to avoid constitutional decisions?

ALITO: I do. I think that's a very important principle.

As I recall, Justice Brandeis, in the Ashwander case, was the one who articulated it most eloquently.

ALITO: And it's, therefore, an important reason. Because a constitutional decision of the Supreme Court has a permanency that a decision on an issue of statutory interpretation doesn't have.

So if a case is decided on statutory grounds, there's a possibility of Congress amending the statute to correct the decision if it's perceived that the decision is incorrect or it's producing undesirable results.

I think that my philosophy of the way I approached issues is to try to make sure that I get right what I decide. And that counsels in favor of not trying to do too much, not trying to decide questions that are too broad, not trying to decide questions that don't have to be decided, and not going to broader grounds for a decision when a narrower ground is available.


GRASSLEY: Further, on judicial restraint, are there any situations where you believe it is appropriate for the Supreme Court justice to depart from the issue at hand and announce broad, sweeping constitutional doctrine?

GRASSLEY: And if you do, could you please describe in detail what those circumstances might be?

ALITO: I think judges should decide the case that is before them. I think it's hard enough to do that and get it right.

And if judges begin to go further and announce and decide questions that aren't before them or issue opinions or statements about questions that aren't before them, from my personal experience, what happens when you do that is that you magnify the chances of getting something wrong.

When you have an actual, concrete case or controversy before you, you focus on that, it improves your ability to think through the issue and it focuses your thinking on the issue. And it makes for a better decision if you just focus on the matter that is at hand and what you have to decide and not speak more broadly.

If you speak more broadly, I think there's a real chance of saying something that you don't mean to say or suggesting something that you don't mean to say and deciding questions before they've been fully presented to you, before you've heard all the arguments about this other question that isn't really central to the case that is before you.


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