Friday, January 13, 2006

ALITO: judicial review and countermajoritarianism

GRASSLEY: What factors, if any -- and there may not be any -- but what factors, if any, are there which can affect a judge's interpretation of the text of the Constitution? Can these factors be determined and applied without involving personal bias of judges?

ALITO: I think they can. There would be no, I think, basis for judges to exercise the power of judicial review if they were doing nothing different from what the legislature does in passing statutes.

ALITO: So judges have to look to objective things.

And if it is a question of absolutely first impression -- and they're aren't that many constitutional issues that arise at this point in our history that are completely issues of first impression -- you would look to the text of the Constitution and you would look to anything that would shed light on the way in which the provision would have been understood by people reading it at the time.

You certainly would look to precedent, which is an objective factor. And most of the issues that come up in constitutional law now fall within an area in which there is a rich and often very complex body of doctrine that's worked out.

Search and seizure is an example. Most of the issues that arise concerning freedom of speech is another example. There is a whole body of doctrine dealing with that. And that's objective. And you would look to that and you would reason by analogy from the precedents that are in existence.

GRASSLEY: Let me bring up the tension between majority rule and individual freedoms.

This involves the tensions between the American ideal of democratic rule and the concept of individual liberties, where neither the majority nor the minority can be fully trusted to define the proper spheres of our democratic authority and liberty.

I assume that you agree that there is tension that has to be resolved.

ALITO: There is tension because our system of government is fundamentally a democratic system. As I said, the authority to make the basic policy decisions that affect people's lives, most of those decisions are to be made by the legislature and by the executive in carrying out the law.

But the judiciary has the responsibility to exercise the power of judicial review. And so if something comes up that violates the Constitution that has been established now going all the way back to Marbury v. Madison, if that comes up in a case, it is the duty of the judiciary to say what the law is and to enforce the law in that decision.

And if that means saying that something that another branch of government has done is unconstitutional, then that's what the judiciary has to do.

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