Comments on: Today’s Opinion in United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority

By: r.friedman

r.friedman — Tue, 01 May 2007 02:59:11 +0000

It appears to me that the question is not whether Alito was Scalia, but who is Roberts?

Alito chose to accept Carbone, in keeping with stare decisis, because it supports his views, rather than aligning himself with the "originalist" views of Scalia and Thomas. As Jacques correctly notes, Alito's position is to the right of Adam Smith. He is so against government-owned business that he wants to use both the 14th Amendment AND the Commerce Clause against government entities.

But what is Roberts doing carrying water for Souter (in return for which Roberts got to announce EC Term of Years Trust)? Carbone really is indistinguishable, and then Roberts goes on to resurrect Pike v. Bruce Church, a conclusory 10-page Stewart opinion, on which to rely. Is it a charm offensive toward Souter? Taking one for the team in order to get a majority decision? A reflexive vote in favor of the municipal bond industry?

There has been a lot of scuffling this term in cases that mean little except to the parties, cases where it's hard to see why the justices took them except perhaps as arenas for working out the relationships between the new justices and old approaches, with new doctrine but one justice away.

roger friedman

By: Joe Paulson

Joe Paulson — Tue, 01 May 2007 02:34:41 +0000

Lest we forget, he also accused Stevens and Kennedy, also dissenting, of it too.

By: Jacques McKenzie

Jacques McKenzie — Mon, 30 Apr 2007 19:58:16 +0000

The most interesting part is that Roberts accuses Alito of raising the ghost of Lochner. Accusing a judge of Lochner-ing from the bench is about as nasty as it gets in judge-speak and it seems warranted: Justice Alito appears to be both off-base in his lack of respect for localities and his policy-driven stretching of precedent. He's also proven with this dissent that he's to the far right of Adam Smith, who notably included sanitation in his list of public goods that should be immune from free market forces.