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.
“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.
As it happens, the mobile phone, which was invented in 1973, predates Alito’s bachelor’s degree, and the Internet dates back to the 1960s (although the World Wide Web came into being in 1993). 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 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, 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.
- 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.
- Obamacare: The Affordable Care Act passed in 2010. Two years later, Alito voted with most of his conservative colleagues on the court to strike it down.
- Warrantless wiretapping: Early in 2013 Alito wrote an opinion in Clapper v. Amnesty 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 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, 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.