Alito and the drumroll of executive authority

Samuel Alito is a troubling choice for the Supreme Court. We disagree with him about abortion and his weak commitment to anti-discrimination law, but we agree with him on other things, such as the death penalty and the rights of states. Our deepest discomfort is over his deference to executive authority.

This should not be an issue of Republicans versus Democrats. Much of the expansion of presidential power was done by Democrats. There was President Truman, who seized the steel mills, and President Franklin Roosevelt, who tried to pack the Supreme Court. Now we have a Republican president who signs every bill presented to him, announcing how he intends to interpret it. For the branch called "executive," this is a constitutional innovation of the first order, as if George W. Bush had amended the great document without telling us.

Bush has also been free with executive orders. Republicans spouted outrage in 1998 when Paul Begala was quoted in The New York Times celebrating a Clinton executive order: "Stroke of the pen. Law of the land. Kinda cool." What sort of attitude toward power was that? Not the American attitude, Republicans said, and they were right.

Now their president is doing it. It was by executive order that Jose Padilla, an American citizen, was kept in a Navy brig for three years without access to the civil courts.

Most ominously, Bush has embraced the doctrine of the unitary executive in foreign policy. Under this doctrine, all the powers of war reside in the president except for the power to declare it and to refuse to pay for it, which Congress never uses. By Bush's interpretation, the unitary executive power may be used inside the United States when the war takes place here, which, in a war on terrorism, it does. Hence, the government's right to listen in on overseas phone calls.

All these things may be challenged in court. What America needs on the Supreme Court are justices who will not defer to executive authority. Yet, Alito's jurisprudence is deferential.

We can always hope. Robert Jackson served in the Justice Department under Franklin Roosevelt, and publicly campaigned in favor of his boss's court-packing plan. During the New Deal, Jackson defended executive power. Yet by 1952, he was on the Supreme Court, and a free man; and in the steel-seizure case, he slapped down a president of his own party.

Alito may need to be another Jackson. We hope he is — and fear he is not.