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8 Things Justice Alito Has Ruled on That Are Newer Than Cellphones and the Internet

Society & Culture  (tags: law, government, freedoms, gayrights, family, children, abuse, americans, culture, dishonesty, ethics, society, rights, sadness, safety, usa )

- 1869 days ago -
During oral arguments over the constitutionality of California's ban on same-sex marriage, Justice Samuel Alito offered a novel reason not to find a constitutional right to same-sex marriage: It hasn't been around that long.

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JL A (281)
Sunday April 7, 2013, 2:35 pm

Mother Jones
8 Things Justice Alito Has Ruled on That Are Newer Than Cellphones and the Internet
The conservative Supreme Court justice seems to think the constitutionality of same-sex marriage depends on how long it's been around.

By Adam Serwer | Thu Mar. 28, 2013 9:16 AM PDT

During oral arguments over the constitutionality of California's ban on same-sex marriage [1], Justice Samuel Alito offered a novel reason not to find a constitutional right to same-sex marriage: It hasn't been around that long.

"You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cellphones or the internet?" Alito said to Solicitor General Donald Verrilli Jr. "We do not have the ability to see the future." The framers presumably left the "no ruling on things younger than cellphones or the internet" clause on the cutting room floor while they were putting together Article III of the US Constitution.

More Mother Jones coverage of gay rights and marriage equality

Big Government or Marriage Equality? DOMA Puts Conservative Justices in a Bind [2]
Here Are the 7 Worst Things Antonin Scalia Has Said or Written About Homosexuality [3]
At Supreme Court, Marriage Equality Foes' Best Argument Is That They're Losing [1]
Which Politicians Supported Gay Marriage and When? [4]
The Anti-Marriage Equality Movement Meets on the Mall—and Tries to Think Happy Thoughts [5]
The Supreme Court's Big Gay-Marriage Week, Explained [6]
VIDEO: The 5 Most Comically Bad Anti-Gay Ads, Ever [7]
Mac McClelland on Gay Rights in Uganda [8]
Gay by Choice? The Science of Sexual Identity [9]
Gay by Choice? Yeah, What If? [10]

As it happens, the mobile phone, which was invented in 1973 [11], predates Alito's bachelor's degree, and the Internet dates back to the 1960s (although the World Wide Web came into being in 1993 [12]). And Alito hasn't always been so reluctant to rule on things "newer than cellphones or the internet." Here are a few examples:

McCain-Feingold: The 2010 Citizens United [13] decision striking down restrictions on outside political spending by corporations and unions also overturned portions of the bipartisan campaign finance law that passed in 2002.
Bush's military commissions: Alito sided with the minority in the 2006 decision in Hamdan v. Rumsfeld [14], which struck down Bush's military commissions. Not only were the military commissions younger than cellphones or the internet, they're also younger than legalized same-sex marriage.
Bans on crush videos: Alito was the lone dissenter in a Supreme Court case ruling that a 1999 ban on the creation, sale and possession of materials depicting cruelty to animals violated the First Amendment [15].
Arizona's harsh anti-immigration law: Arizona passed its harsh anti-immigration law in 2010, but only two years later Alito sided with the conservative minority who wanted to uphold part of the law that had been struck down by a lower court [16].
Obamacare: The Affordable Care Act passed in 2010. Two years later, Alito voted with most of his conservative colleagues on the court [17] to strike it down.
Warrantless wiretapping: Early in 2013 Alito wrote an opinion in Clapper v. Amnesty [18]dismissing a challenge to the 2008 FISA Amendments Act that retroactively legalized Bush's warrantless wiretapping program on the grounds that the plaintiffs couldn't prove they had been spied on by the government.
Fake Military Honors: Last year Alito joined two of his conservative colleagues in dissenting from a decision [19] that a 2005 law making it illegal to lie about receiving a military medal was unconstitutional because it violated the First Amendment.
Speech as material support for terrorism: Alito sided with the government in Holder v. Humanitarian Law Project [20], a case in which the court held that under the PATRIOT Act, which passed in 2001, anyone providing any kind of "assistance" to terrorist groups—even say, posting an extremist video online—could be charged with material support for terrorism.

Either restricting people's fundamental rights based on sexual orientation is unconstitutional or it isn't. This list is by no means exhaustive—it's just a handful of cases in which Alito has been able to figure out how to interpret the Constitution without an egg timer.
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Darren Woolsey (218)
Sunday April 7, 2013, 2:37 pm

Well, the U.S. in its present form has only been around since 1777 (, so does that mean it can be returned to its rightful indigenous owners?

. (0)
Sunday April 7, 2013, 2:39 pm
After reading his view on crush videos, I had enough of this fool.

David C (29)
Sunday April 7, 2013, 2:43 pm
this is not a April fool joke JI.A??

JL A (281)
Sunday April 7, 2013, 3:15 pm
Wish it were David.
You cannot currently send a star to Darren because you have done so within the last day.

Angelika R (143)
Sunday April 7, 2013, 4:58 pm
I've heard /read this before, almost unbelievable. It is beyond me how SUCH folks could ever get appointed...and I'm afraid you'll have to suffer them for quite some tme to come. Thx JL

Kit B (276)
Sunday April 7, 2013, 5:48 pm

They get appointed ideally based on a record of non biased and constitutionally strong decisions in their years on the bench, Angelika. However, life is not ideal and most are appointed because they are snuggled in with one party or the other. Aleito like Roberts is one of GW's boys. I think he finds this whole discussion of 'gays' to be icky. I am placing no bets, but figure this will be tossed back to states. Next, what will they with DOMA?

JL A (281)
Sunday April 7, 2013, 5:48 pm
You are welcome Angelika. You cannot currently send a star to Angelika because you have done so within the last day.

JL A (281)
Sunday April 7, 2013, 6:08 pm
You cannot currently send a star to Kit because you have done so within the last day.

Stephen Brian (23)
Sunday April 7, 2013, 9:03 pm
Some of these things aren't actually newer than the U.S. constitution, and on at least most of the others, he stuck to the same principle:
Spending on elections is as old as democracy, whichpredates the U.S. (even if prior democracies did not include election of the sovereign office).
Military commissions are as old as laws of war, and are formally sanctioned under approrpriate treaties. The ones produced under Bush were obviously not, but Alito simply demanded that they follow a general formula so old that there are Biblical references to specual laws for war, and I don't mean New Testament.
In the Arizona anti-immigration case, there were very good legal arguments that a law permitting state police to enforce standing federal law did not interfere with federal law-enforcement (though the court ruled that it did).
Modern public healthcare did not exist at the time of the constitution. He opposed federal invovlement in that too, following the same principle he applies here.
Special authority to investigate by law-enfrcement bodies and privacy-concerns go back to well before the U.S. was founded.
Recruitment for enemy forces has always been treason, as has been working to furhter their objectives by whatever means they favour. The medium used is irrelevant.

The bans on "crush" videos and fake military honours appear to break the pattern, but there are arguments there as well. Obscenity-laws go back to theocracies, well before the U.S. constitution, and fake military honours can constitute fraud if used for job-applications. The problem is that today, online profiles are used by employers for hiring even when they really should not be. I don't know if he made these arguments or was just being hypocritical, but they do exist.

Of course, the institution of marriage well-predates the constitution, as does homosexuality.

TomCat S (129)
Monday April 8, 2013, 4:40 am
That's why I call him Scalito.

Anna Undebeck (256)
Monday April 8, 2013, 5:54 am
Weirdo... Thanks JL

JL A (281)
Monday April 8, 2013, 7:05 am
You are welcome Anna.
You cannot currently send a star to TomCat because you have done so within the last day.

Past Member (0)
Monday April 8, 2013, 2:12 pm
noted thanks

JL A (281)
Monday April 8, 2013, 2:33 pm
You are welcome Carol

John B (185)
Monday April 8, 2013, 6:59 pm
Thanks J.L. for the post. Read and noted.

JL A (281)
Monday April 8, 2013, 7:07 pm
You are welcome John.

Past Member (0)
Tuesday April 9, 2013, 5:43 am

Jeanette M (1)
Tuesday April 9, 2013, 6:53 am

. (0)
Tuesday April 9, 2013, 8:09 am
Very interesting article. Thanks for sharing.

JL A (281)
Tuesday April 9, 2013, 8:21 am
You are welcome Laura.You cannot currently send a star to Laura because you have done so within the last day.

Birgit W (160)
Tuesday April 9, 2013, 1:27 pm

Phil P (94)
Tuesday April 9, 2013, 5:33 pm
Why do I think of the inquisitions when I hear Alito and Scalia's names?

paul m (93)
Wednesday April 10, 2013, 4:11 am


Kerrie G (116)
Wednesday April 10, 2013, 10:20 am
Noted, thanks.

JL A (281)
Wednesday April 10, 2013, 10:36 am
You are welcome Kerrie.
John, gay marriage was prevalent up until about the Victorian era according to historians--including in the Christian churches.

Jane H (139)
Wednesday April 10, 2013, 10:54 am
What a lame excuse---he's oviously been closeted away from reality! But--it was "the love that dares not speak its name", but I bet he doesn't know about that either.

Maitreya L (23)
Wednesday April 10, 2013, 1:55 pm
WTF? Gay marriage predates Christianity, even early Christians sometimes practiced it. A Supreme Court Justice ought to know a little basic history.

Winn Adams (179)
Wednesday April 10, 2013, 4:30 pm
What a jerk. No surprise here . . . .

JL A (281)
Wednesday April 10, 2013, 5:29 pm
You cannot currently send a star to Winn because you have done so within the last day.

paul m (93)
Thursday April 11, 2013, 3:06 am


Ro H (0)
Friday April 12, 2013, 12:39 pm

JL A (281)
Friday April 12, 2013, 3:10 pm
You are welcome Ro

. (3)
Monday April 15, 2013, 5:51 pm
Very interesting. Noted
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