Law and Order


Nathan Newman dredges up a telling little quote from Samuel Alito’s 1985 application for some promotion or other. First there’s Alito’s contention that “the Constitution does not protect the right to an abortion.” That’s a big deal, obviously, but there’s also this:

In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.

As Nathan points out, by “reapportionment,” Alito apparently means he’s not happy with the Warren Court’s various “one person one vote” decisions (here and here), which prevented state legislatures from drawing up voting districts in such a way that they could pack tens of thousands of urban voters into a single district and then lightly sprinkle hundreds of rural voters into another. These district lines, naturally, were usually drawn up to water down the voting power of African-Americans in the South by cramming them into urban Bantustans. (Some might say the Warren Court didn’t go far enough on this score; legislatures are still allowed to count prison populations towards the size of an individual voting district, despite the fact that those prisoners can’t actually vote.)

But I’m curious about another part of his statement. What Warren Court decisions concerning “criminal procedure” drew Alito’s ire, exactly? Was it Gideon vs. Wainright, ensuring that all Americans must be provided a lawyer if they cannot afford one? Mapp v. Ohio, making evidence that was illegally obtained inadmissible in court? Escobedo v. Illinois, doing the same for evidence obtained by improper interrogations? Would he rather citizens not be informed of their Miranda rights? Does he think the Court took a wrong turn in Hernandez v. Texas when it said that Mexican-Americans could not be excluded from juries? Inquiring minds want to know. For the most part, criminal procedure occupies the majority of the Supreme Court’s time, and it would be nice to know what manner of “law and order” justice we’re dealing with here.

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