This is FRESH AIR. I'm Terry Gross.

We've invited constitutional scholar Cass Sunstein back to our show to talk with us about the judicial record of Judge Samuel Alito, President Bush's nominee to replace retiring Supreme Court Justice Sandra Day O'Connor. Alito was unanimously confirmed to the US Court of Appeals in 1990 when he was nominated by President George H.W. Bush. But he's a more controversial nominee for the Supreme Court and faces liberal opposition.

Cass Sunstein is a professor at the University of Chicago Law School, a contributing editor at The New Republic and author of the new book "Radicals in Robes." He wrote an op-ed piece on Alito in today's Washington Post.

You write in your op-ed piece in The Washington Post today that his decisions have been almost universally--almost uniformly conservative. And usually when he dissents, he has a more conservative position than that of his col-leagues and that you could see that in his dissents on civil rights cases. Can you give us some examples of that?

Professor CASS SUNSTEIN (University of Chicago): Yeah. In his 40 or so dissenting opinions, when they have an ideological dimension, he's almost always on the conservative side, opposing sometimes conservative colleagues. There was one case where a woman and her 10-year-old daughter were subject to a strip search; they were asked to take off their clothes. And this pretty clearly violated their constitutional right because there wasn't a warrant to tell these people to do that. And they sued, saying their constitutional rights had been violated. The court said that the case could go for-ward because it was a clear violation of their rights. And Judge Alito dissented, saying the police had qualified immu-nity. His opinion wasn't lawless; it had some basis in the law, but it was a bit of a surprise that he would strike out in dissent in that way.

There was a recent case involving prisoners in segregation units, who were banned from receiving newspapers or magazines, even from the prison library. The court struck down that ban as violating the prisoners' First Amendment rights. Judge Alito dissented. He said that the ban was in the prison's legal power.

There was a case involving a Hindu temple, a little relevant to recent debates about church and state, which had land use restrictions imposed on it, lots of them, including they had to have off-duty police officers there to monitor and protect the site. That's what the local zoning board required. And the court said this is very hard to defend, these restric-tions on the Hindu temple. They're arbitrary and unlawful. Judge Alito dissented, saying that what the zoning board did was perfectly legitimate. And this is consistent with the general pattern of his decisions in dissent.
And I guess what I'd say unifies a lot of them is deference to established institutions. So if it's a prison or a univer-sity or an employer or police officers, he is protective of them; less protective of people complaining that they violated the law.

GROSS: And what are the larger--what's the larger significance of that?

Prof. SUNSTEIN: I guess what I'd say is that Judge Alito isn't someone like Justice O'Connor, who was unpredict-able in her outcomes. He's someone who, at least on the Court of Appeals, when he's departed from his colleagues, has always gone--or almost always gone--in the same direction. So if some Democrats and moderates are nervous and some conservatives and Republicans are happy, it might be because this is someone who seems to be of a predicable mind on some of the great issues of the day.

GROSS: Since abortion is an issue that both the left and the right are measuring Judge Alito by, let's take a look at abortion. It seems the strongest indication we have on his judicial opinion on abortion is in the case Planned Parenthood vs. Casey. Would you summarize for us his dissenting opinion in part of that case?

Prof. SUNSTEIN: Yeah. The--part of his opinion was actually quite prescient. He predicted that the Supreme Court would ultimately adopt the undue burden standard for evaluating restrictions on abortion, and he was quite right on that. The court eventually was persuaded to do that by Justice O'Connor. Where he wasn't so prescient was that he voted to uphold part of the law that required married women to notify their husbands that they were going to have abortions. And he was in dissent there because the majority of the court concluded that most of the time married women are going to notify their husbands, and when they're not, there's probably some problem, very possibly fear, even physical fear. And in cases of that sort, the majority said this was an impermissible restriction on the woman's right. Judge Alito disagreed with that. He said that this was not an unconstitutional restriction, and the Supreme Court eventually disagreed with him.

GROSS: What does that tell you about his larger judicial philosophy on abortion? Does it tell you much?

Prof. SUNSTEIN: I think it does tell you something. I think it strongly suggests that he is not going to take an ex-tremely firm hand against restrictions on the abortion right that falls short of elimination of the abortion right. It would-n't be at all surprising if Judge Alito thinks Roe against Wade as an original matter was wrong. It wouldn't be a shock if Judge Alito ultimately votes to overrule Roe against Wade. I think this is a tea leaf we actually can read; that when there's a restriction on the abortion right that doesn't go to the heart of the right, doesn't eliminate it, Judge Alito is probably likely to listen with great respect to the government's arguments.

GROSS: So you think it's likely that he would vote to overturn Roe v. Wade if it came to a vote?

Prof. SUNSTEIN: I wouldn't say he'd vote to overturn Roe against Wade. That's a quite momentous decision, and any person would have to think long and hard before doing that. I think what's clear is that he is likely to be receptive to efforts to protect the interest in fetal life that don't eliminate the woman's basic right to choose abortion. What I'm talk-ing about now are things like restrictions that involve parental notice requirements, restrictions on so-called partial-birth abortion, efforts to qualify the right that fall short of eliminating the right. That's the domain in which we're going to see a lot of action in the next five, 10 years.

GROSS: Let's look at Judge Alito's opinions on states' rights vs. congressional authority. Do you want to choose a decision that you think is particularly revealing on that subject?

Prof. SUNSTEIN: Yes. There's one that's actually quite revealing. It's a very big deal. The court in the '90s--that is, the lower court--was confronted with someone who possessed and actually sold machine guns and argued, the defendant did, that Congress doesn't have the constitutional authority to ban at least the possession of machine guns. The court ruled that Congress did have that power under the commerce clause, saying that machine guns typically travel in inter-state commerce and they affect interstate commerce because of their connection with crime.
Judge Alito, in a very striking dissenting opinion, argued that our system of constitutional federalism, as he rightly described it, forbids Congress from banning the possession of machine guns; that there has to be some requirements in the law that the machine guns are traveling in interstate commerce or something to that effect. And that ruling was a bit of a surprise. The courts have not been striking down bans on the possession of machine guns. It suggests that he is quite interested in the revival of constitutional limits on Congress' power. And there's no question that Senator Specter, among others, will be a little concerned about that.

GROSS: You mentioned that part of Judge Alito's opinion was based on his interpretation of the interstate com-merce clause. Now the interstate commerce clause has been at the center of some judges' judicial philosophy. Why is this clause such a focus of attention and a way that we kind of try to read somebody's judicial philosophy now?

Prof. SUNSTEIN: OK. It's a really big deal, and the simple reason is that much of what Congress does under the Clean Water Act, the Endangered Species Act, the Civil Rights Act and much more, much of this comes under the commerce power. So Congress, insofar as it's protecting rights, often is acting in the--under the provision of the Consti-tution that allows it to regulate interstate commerce.

Now a lot of people think that Congress has taken the commerce clause too broadly and that when Congress tries to regulate, for example, possession of marijuana or possession of machine guns or some violations of civil rights or tries to protect endangered species in one state--a lot of people think that Congress has exceeded its constitutional authority. Now if they prevail, we could see a very fundamental change in how our government is structured. It could be that laws that have been on the books a long, long time will all of a sudden be invalid. And Judge Roberts, actually, as judge, raised the possibility that the Endangered Species Act would be unconstitutional as applied to purely intrastate activity.

Now Judge Alito has said--in a much more dramatic opinion than Judge Roberts' quite cautious one, Judge Alito says that the possession of machine guns cannot constitutionally be criminalized by Congress. It can by the states, of course, but not by Congress. And that will concern Senator Specter and several others, who are aware that, under the leadership of Chief Justice Rehnquist, the Supreme Court has struck down over 30 acts of Congress since 1995; that's a huge number. And these people are concerned, the senators are concerned, conservatives as well as liberals, that the court will prevent them from doing what they believe to be their constitutional job. And this is a--for people who think that way, as Senator Specter does, this opinion by Judge Alito is a warning sign. It suggests that he is with those who are interested in reading the Constitution to restrict Congress' power under the commerce clause.

GROSS: So can you explain just a little bit more on what grounds certain laws are being ruled unconstitutional be-cause of the justices' interpretation of the interstate commerce clause?

Prof. SUNSTEIN: Yes. Some justices believe, for example, that if Congress tries to penalize violence against women, as it did by creating a civil rights action that women would have against those who committed violence against them, then it's not regulating interstate commerce; that this can be just within one state. What does this have to do with interstate commerce? So a majority of the court said--in striking down a provision of the Violence Against Women Act, the dissenters said, `Look, violence against women has interstate effects. If there's a lot of violence in New York that's against women, then women aren't going to travel to New York, so this does affect interstate commerce.' The majority of the court disagreed, and so a provision of the Violence Against Women Act was struck down. And many members of Congress, Republicans as well as Democrats, didn't like that.

GROSS: What are some of the other laws that you think might be challenged?

Prof. SUNSTEIN: Well, the Clean Water Act in some of its applications is now constitutionally vulnerable, no question about that. If the Clean Water Act is being used to protect against pollution in a body of water that's just within one state, well, then there could be a constitutional challenge to the Clean Water Act. So, too, there are hate crimes laws that are designed to protect against hate crimes based on race and other grounds--race and religion. Hate crimes laws enacted at the federal level would be constitutionally vulnerable under this view because many hate crimes don't have an obvious connection with interstate commerce.

As I've already mentioned, the Endangered Species Act often applies to behavior that really just occurs within one state where--for example, landowners taking steps that will eliminate an endangered species. Many members of Con-gress think that when an endangered species is eliminated, that, by its nature, affects interstate commerce because scien-tists and others often want to travel to see these species. And also there are ecological functions, it's said, that many spe-cies perform that cross state lines. But those who doubt this argue that, `Well, if the endangered species is just within one state and there's no commerce in it, then Congress really lacks the constitutional power to do anything about it.'

At the extreme, some of the civil rights laws might be constitutionally vulnerable, and we did have a fight about that in the 1960s. But if you have a civil rights law, for example, that forbids a restaurant that just does business within one state from discriminating on the basis of race, what does that have to do with interstate commerce?--some would ask. Now it may be that the precedent that upholds the civil rights laws is so entrenched that no one will take it on. But we can see the direction of the law that Judge Alito, at least, signals in suggesting that the possession of machine guns is something that Congress can't reach without showing a connection to interstate commerce.

GROSS: So the interpretation of the interstate commerce clause that Judge Alito has demonstrated is an interpreta-tion that would lead toward more federal deregulation.

Prof. SUNSTEIN: Yeah. It would lead toward more restrictions on Congress' power to act on the ground that there's a connection between what it's doing and interstate commerce. And Judge Alito's position here, I should add, is well-reasoned and not without support in what the Supreme Court has said. But notice that he dissented, and the major-ity of the court thought that the possession of machine guns could be reached by Congress. And the dissent is a signal that what you describe rightly as a form of deregulation by a constitutional law, he might well turn out to be interested in.

GROSS: My guest is constitutional scholar Cass Sunstein. He's a professor at the University of Chicago Law School and author of the book "Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America." More after a break. This is FRESH AIR.

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GROSS: If you're just joining us, my guest is constitutional scholar Cass Sunstein. He's a law professor at the University of Chicago Law School and author of the book "Radicals in Robes."
If Judge Alito is confirmed, how do you think his confirmation would change the makeup of the court?

Prof. SUNSTEIN: Probably a lot. Justice O'Connor, whom he'd replace, was often unpredictable. And what really marked her was she was--and is- a minimalist; that is, someone who focuses on the particular facts of the particular case and often refuses to venture far from the narrow issue at hand and whose decisions often couldn't be forecast. So when the court upholds affirmative action programs or refuses to overrule Roe against Wade or upholds campaign finance regulation or allows Congress to regulate commercial advertising, she's often been the key vote.

Now to read Judge Alito on any of these issues as having a definite view would be too speculative. On the other hand, as a lower court judge, he has shown both a high degree of confidence and a high degree of predictability. And that suggests that we would probably see some movement in the court toward conservative rulings on most of these issues.

GROSS: Most of which issues?

Prof. SUNSTEIN: Most of the great issues that are now dominating public discussion, such as campaign finance regulation, affirmative action programs, restrictions on commercial advertising, the constitutional legitimacy of the En-dangered Species Act, the protection of property rights, which has gotten a lot of attention in the last year. On these is-sues, it's likely, based on his lower court rulings, that he would be most of the time with Justice Scalia and Justice Thomas.

GROSS: When Judge Alito was nominated by the elder President Bush for the appeals court, he was unanimously confirmed. And now he's a hotly contested nominee. What's changed? Why unanimous in the early '90s and hotly contested in 2005?

Prof. SUNSTEIN: The difference between a lower court and the Supreme Court, the stakes are much higher. So a lot of people, Republicans or Democrats, would happily vote for someone to a lower court, where the discretion is lim-ited, but they wouldn't vote for the same person for the Supreme Court, where the discretion is significant.

GROSS: We've all heard that Judge Alito's nickname is Scalito because of the similarities he's perceived to have to Justice Scalia. Do you think he's similar to Justice Scalia in his judicial philosophy?

Prof. SUNSTEIN: In some ways, yes; in many ways, no. He has a very different style, so I think the Scalito moni-ker is more just because the names sound a little bit alike than because they are really similar. That is Judge Alito is low key, and Justice Scalia is not low key. Justice Scalia is one of the best writers in the history of the federal judiciary. Judge Alito is a solid, clear writer, but he has none of the, let's say, panache and imagination in his writing that Justice Scalia shows. Justice Scalia has a well-worked-out theory of constitutional interpretation that he developed as an aca-demic, which is that the Constitution means what the ratifiers thought it meant. Judge Alito has not supported that view.

One dimension along which they're sort of similar is that Judge Alito does believe that ordinary laws should be in-terpreted to fit with their text; that is, he insists text is our loadstar. And Justice Scalia is on the same track on that point. Also, Justice Scalia, of course, has a largely conservative set of voting patterns. On most issues, he is unquestionably conservative. Judge Alito also, despite being low key and kind of cautious in his opinions, shows really very conserva-tive voting patterns. He's a very different judge than Scalia. Scalia is someone who you could kind of tell was an aca-demic. His mind goes toward theory. Judge Alito you can tell was a lawyer. His mind goes toward, really, the details of the law. So their styles are fundamentally different.

GROSS: So what are you expecting from the hearings?

Prof. SUNSTEIN: I think they will be extremely lively hearings. I think that many of the Democrats and some of the Republicans will be concerned not about Judge Alito's competence, not about his character but about his predictabil-ity, thinking that judges should have a measure of unpredictability that--in a way, that's a credit to them. I also think there's going to be a tremendous amount of spinning by both sides in a way that will characterize Judge Alito as very different from what he is, which is a highly competent, low-key, unfailingly courteous, respectful and quite conservative judge.

GROSS: Cass Sunstein, thank you so much for talking with us.

Prof. SUNSTEIN: Thank you very much.

GROSS: Cass Sunstein is a professor at the University of Chicago Law School and author of the book "Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America."
I'm Terry Gross, and this is FRESH AIR.

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