Will Alito Crown A New ‘Great Dissenter’?

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Professor Martin Flaherty was quoted in a POLITICO article examining Supreme Court Justice Alito’s writing, which heavily quotes former Justice Byron “Whizzer” White.

Until now, [Byron “Whizzer” White, who served in the Supreme Court from 1962 to 1993] seemed destined to fade into obscurity, lacking a clear profile as a judicial thinker. But he was one of two dissenters on the landmark 1973 abortion rights decision that [Samuel Alito] aims to overturn, and Alito quotes him with gusto, at times with a reverential tone.

Martin Flaherty, a constitutional law professor who teaches at Princeton’s School of Public and International Affairs as well as Columbia and Fordham Law Schools, and served as a White clerk, argues persuasively that the common thread in White’s career was a fear of judicial overreach — and its roots were less in conservative philosophy than White’s own background. As a young man, he was a New Deal supporter who watched, unhappily, as the Supreme Court tried to block federal regulation of business.

The early New Deal-era court drew on a chain of cases finding a right to business contracts in the due process clause of the 14th Amendment — the same place in the Constitution that justices of White’s own era on the court located abortion rights.

“White’s antipathy to substantive due process was, paradoxically, the product of being a liberal from the time he grew up and went to college and went to law school” and watched the court strike down President Franklin D. Roosevelt’s economic legislation on specious grounds, Flaherty said. “In contrast, Alito rejects substantive due process precisely because it was used to protect non-economic rights viewed as progressive.”

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