My Obligatory Post on Samuel Alito

Ken AshfordSupreme CourtLeave a Comment

Busy day today for me, so I’ll just mention a few things about Bush’s nominee to the Supreme Court, and update this post (maybe) as the day goes on.

Yes, Alito is a conservative.  Yes, he’s a strict constructionist.  Yes, his nomination helps Bush politically by bringing Bush’s base back into the fold.  Yes, Alito has more experience than Miers. 

Which means . . . No, there is no reason to reject him.

Why not?  He’s qualified, that’s why not.  Or — as I have said before with Roberts — we lost this battle in Election 2004.

Now, there are some fear out there that he’s another Scalia.  Some are already calling him Scalito or Little Nino.  I’m not entirely convinced.  From what I heard on NPR this morning (from a liberal lawyer who tried cases against Alito, as well as argued in front of him), Alito believes strongly in precedent.  Scalia, for all his bluster, does not — he talks like he does, but he is quick to find ways to abandon precedent when it suits his political bias.  In other words, Scalia is an activist conservative; Alito appears to be, at worst, a passive one.

The talk already is about abortion.  It’s always about abortion. I have to be honest: I think the issue gets overplayed when it comes to Supreme Court nominations.  Roe v. Wade isn’t going anywhere.  It’s not only precedent, but it is long-standing precedent.  An entire generation has come of age in the post-Roe world.  And if indeed Alito is not a precedent-bucker, he’s not going to vote to overturn it.

What he will do, at worst, is chew at its edges.  When sitting on the Third Circuit Court of Appeals, Alito was the lone dissenter in Planned Parenthood v Casey.  That case involved a Pennsylvania law which would have required women getting abortions to notify their husbands.  Alito is seems would have upheld the law (although I haven’t read his dissent yet).  The rest of the Third Circuit deemed the Pennsylvania statute unconstitutional; as did the U.S. Supreme Court on appeal.

But that doesn’t necessarily mean that Alito is anti-choice.  It is possible, for example, to believe in choice so much that you think that the father of the prospective baby has a choice as well. 

In any event, that’s far different from actually being an indicator that Alito is anti-choice (I’ll have to read his dissent to be sure…)

Besides, even if Roe v. Wade is overturned by this new Roberts Court, all that means is that each state will have to decide whether or not to ban abortions.  Nationally, we are 60-65% pro-choice.  Most states will keep abortions safe and legal.  I believe only the reddest of the red states will ban abortions entirely — Mississippi, for example.  But all is not lost on this issue by far.

But, like I said, enough about Roe.  I think any concerns about it are a stretch.

So right now, my Alito mood is cautionary, but resigned.

As for more about Alito, I’ll borrow Scott Lemieux’s link round-up:

  • SCOTUSblog has the general overview.
  • PFAW on Alito, with particular emphasis on his dissent in Planned Parenthood v. Casey (he wanted to uphold the entire Pennsylvania law, including the spousal notification provision struck down by the Court.) There is every reason to believe, in other words, that at best Alito would gut Roe and at worse would overturn it. ["No, no, no!" – Ken]
  • Article III Groupie, as usual, has some very good links, and also reminds us that Clement was also supposed to be a nominee, so you never know.
  • Eric Muller has a personal account, suggesting that Alito is at least personally moderate.
  • Jack Balkin suggests, persuasively, that Luttig would get a tougher ride from the Senate than Alito.

MORE:  Yup. Alito’s got a blog, too.

MORE:  Ugh.  They’re using the dead Rosa Parks for an Alito photo-op:

Wasting no time, Alito went to the Capitol shortly after the announcement to meet Senate leaders. Accompanied by two of his children and Senate Majority Leader Bill Frist, Alito paused first to pay his respects at the coffin of the late civil rights pioneer Rosa Parks in the Capitol rotunda.


Before I venture into this, let me point out something very important: you cannot understand a judge by reading the bottom line of his/her opinions.  What a judge decides is completely irrelevant compared to how he decides.

Here’s an illustrative example:  Suppose the state legislature in State X passes a 10-cent gasoline tax.  A citizen’s group challenges the law in court as unconstitutional.  Judge Y throws out the lawsuit.  Does this mean that Judge Y "is a friend of the oil interests"?  No.  It just means that the law passed by the legislature does not violate the Constitution.  Judge Y could hate the law personally, but recognize that the law is constitutionally permissible. 

So one has to be cautious about trying to determine what a judge is like, based solely on "who won".  It’s how the judge thinks in reaching that decision that is important.  And with that, let’s look at some of Alito’s opinions.

A majority opinion in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999), holding that the Establishment Clause was not violated by a city hall holiday display that contained a creche, a menorah, secular symbols of the season, and a banner proclaiming the city’s dedication to diversity.

I browsed this opinion.  I guess this was one of those cases where you had to see the holiday display in order to conclude whether or not it was promoting religion.  The original holiday display was clearly religious, so city hall threw in a sleigh and other secular symbols of the season, plus the aforementioned banner.  Not sure if it was a "sham" nod to diversity or not.

A majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), holding that an Iranian woman seeking asylum could establish that she had a well founded fear of persecution in Iran if she could show that compliance with that country’s "gender specific laws and repressive social norms," such as the requirement that women wear a veil in public, would be deeply abhorrent to her. Judge Alito also held that she could establish eligibility for asylum by showing that she would be persecuted because of gender, belief in feminism, or membership in a feminist group.

Didn’t read/browse the Fatin case, but if this summary is accurate, this actually is a plus from a feminist point of view.

A majority opinion in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001), striking down as contrary to the First Amendment a public school district anti-harassment policy that extended to nonvulgar, non-school-sponsored speech that posed no realistic threat of substantial disruption of school work.

A bit troubling.  While I am a strong believer in the First Amendment, the plaintiffs in Saxe were Christians who feared that that their (Christian) sons and daughters would get in trouble for "harassment" when the spoke out in public schools about the evils of homosexuality, etc.  Legally speaking, the school policy was struck down because it was too broad, but one wonders if the result had been the same if the complaining parents were, say, pro-gay.

But, on the other hand, there’s this:

A majority opinion in Shore Regional High School Board of Education v. P.S., 381 F.3d 194 (3d Cir. 2004), holding that a school district did not provide a high school student with a free and appropriate public education, as required by the Individuals with Disabilities Education Act, when it failed to protect the student from bullying by fellow students who taunted the student based on his lack of athleticism and his perceived sexual orientation.

Now, the Shore opinion was interesting to read (okay, browse).  This poor kid was bullied and abused for being a "queer" (it’s not clear, nor relevant, whether the kid actually was gay or not).  It was so bad that it was impossible for this kid to get an education.  Overturning the lower court, Alito sided with the kid, and required the Shore School District to reimburse the kid’s parents for private tutelage, etc.

A majority opinion in Williams v. Price, 343 F.3d 223 (3d Cir. 2003), granting a writ of habeas corpus to an African-American state prisoner after state courts had refused to consider the testimony of a witness who stated that a juror had uttered derogatory remarks about African Americans during an encounter in the courthouse after the conclusion of the trial.

Not much to say about this.  It doesn’t point to anything, even in a racial context.  It merely says that the prisoner was entitled to a hearing based on the evidence that one of the jurors was racist.

A dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), arguing that a Pennsylvania that required women seeking abortions to inform their husbands should have been upheld. As Judge Alito reasoned, "[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems–such as economic constraints, future plans, or the husbands’ previously expressed opposition–that may be obviated by discussion prior to the abortion." Chief Justice Rehnquist’s dissent from the Supreme Court’s 5-4 [corrected] decision striking down the spousal notification provision of the law quoted Judge Alito’s dissent and expressed support for Judge Alito’s reasoning.

I discussed Planned Parenthood above; I still haven’t read it.  The quoted Alito language is a little disturbing.  It shows a slavish acquiescence to legislative intent — something not necessarily bad, but it can be overdone.  What troubles me is that he talks about what the legislature "could have rationally believed" — it seems to me that if the legislature didn’t make its intent clear, then the court should not engage in tea leaf reading.

More than that, Alito’s Planned Parenthood rationale smacks of forced speech.  I wonder if anyone has addressed the First Amendment implications — can the legislature constitutionally FORCE women to inform husbands of their pregnancy?  Doesn’t the right to free speech necessarily encompass the right NOT to speak?

Well, my Alito mood is still cautionary, but resigned.


Two things have passed by transon which give me pause.  First, this comment from GW Law Professor Jonathan Turley:

TURLEY: Oh absolutely. There will be no one to the right of Sam Alito on this Court. This is a pretty hardcore fellow on abortion issues.

COURIC: Not even Antonin Scalia?

TURLEY: They’ll have to make a race to the right, but I think it will be by a nose, if at all. …


Second, many on the left are talking about Alito’s dissent in this case (PDF format) — a case where the Third Circuit said that police did not have qualified immunity when being sued by a woman and her 14-year-old daughter after they were strip searched.  Alito was the lone dissenter, opining that the search was constitutional under the warrent.  Unlike some of my liberal brethren, I don’t think this means that Alito is in favor of strip searches of minors.  The issue in that case was whether or not the strip search was authorized by the warrent (signed by a magistrate).  If it was, and you are angry about it, your beef is with the judge who signed the warrent, not with Alito.

What troubles me about Alito’s dissent, however, is that he chastized the majority for reading the warrent to strictly and literally.  He argues that the warrent should be read applying a "commonsense and realistic" approach.  Now, when judges use phrases like this, this could be construed as being "activist".  Or certainly not strict constructionists.  It suggests that Alito — like Scalia — can be more "small-l" liberal in his interpretation of the law . . . when it suits him.

So my Alito mood is quite disturbed (but still somewhat resigned).

STILL MORE:  Did you know that, with Alito, there will not be five Catholic males on the Supreme Court?


I was perusing Alito’s dissent in U.S. v. Raybar.  That case involved whether or not Congress could regulate possession of a machine gun.

A little law geek stuff:  Under the Constitution, Congress can regulate many things.  One of those things is anything dealing with "interstate commerce" (commerce between one or more states).  Specifically, Congress can pass laws relating to anything "affecting interstate commerce".  "Affecting" is a fuzzy word — what does that mean?  In this complex economy, can’t any regulation "affect" state commerce — at least tangentially?

So the scope of the interstate commerce clause is a difficult and perplexing one.

Anyway, an important case came down in 1995 called United States v. Lopez.  That case involved a federal regulation which sought to restrict handguns on school playgrounds.  The question was whether or not Congress had the power to pass that law — i.e., was it a law which affected interstate commerce?  SCOTUS said "no" — the law exceeded congressional powers.

Okay.  Back to U.S. v. Raybar.  This was decided after Lopez, and the question (again) was whether Congress’s restriction on intrastate possession of machine gund (that is, possession of machine guns entirely within a single state) affected interstate commerce of machine guns.

In Alito’s dissent, he criticizes the majority.  In it, we find this language (note the section I placed in bold):

The majority’s second theory appears to be that Congress could have rationally  concluded that the purely intrastate possession of machine guns increases the incidence of certain crimes–the majority specifically mentions violent crime, racketeering, and drug trafficking–that are of "national concern." 

But Alito continues that "coulda" just doesn’t cut it with him:

I take this theory very seriously, but my problem with it is that it rests on an empirical proposition for which neither Congress, the Executive (in the form of the government lawyers who briefed and argued this case), nor the majority has adduced any appreciable empirical proof.

Now, let’s compare with the language in the summary above, from Planned Parenthood v. Casey:

As Judge Alito reasoned, "[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems–such as economic constraints, future plans, or the husbands’ previously expressed opposition–that may be obviated by discussion prior to the abortion."

Do you see what this is about?

In the machine gun case, Alito was not going to defer to Congress based on what Congress "could have rationally" intended.  No, Alito wanted "empirical proof" of what Congress intended.  (Real world result if Alito had his way: the ban on machine guns would be struck down).

But in the Planned Parenthood case, Alito was willing to providentally divine what the Pennsylvania legislature "could have rationally" intended with their spousal notification law. (Real world result if Alito had his way: a limitation on abortions by requiring spousal notification).

Now, assuming you have followed me this far, this is what I am concerned about.  It’s when a judge takes two different approaches to reach a result — a result that conservatives would prefer.  In one case, Alito is deferential to legislatures; in another, he is far less so.  A non-partisan judge would approach both issues consistently, regardless of whether the underlying issue is machine guns, or spousal notification of abortions, or whatever.

This brings to mind another judge who seems to lack a consistent judicial philosophy in order to reach a pre-destined result — Justice Scalia.

Color me deeply troubled.

UPDATE:  Alito’s dissent in Planned Parenthood v. Casey can be found here.  It’s interesting because he relies on O’Connor for his position. 

His position?  Wives telling husbands that they are pregnant does not pose an "undue burden" on a woman’s right to an abortion.

Does anybody believe that?  Suppose the wife wants to have an abortion and the husband does not — a non-fanciful situation that occurs thousands of times a day, I’ll bet.  The mere fact that she is legally required to inform the husband might prevent her from actually having the abortion at all.  Better to have the (unwanted) kid than to have the conflict, many women would say (rightly or wrongly).  In fact, that’s surely the reason why the law was enacted in the first place.

It’s that kind of micromanaging of people’s private lives that gets me up in arms.  Sure — in an ideal world, we would want women to tell their husbands, and we would want both of them to reach a decision about whether or not to have an abortion.  But we don’t live in an ideal world.  And no marriage is ideal 100% of the time.  And you can’t legislate idealism, people.

Anyway, back to O’Connor.  It is very interesting that the very test upon which Alito relied for his dissent — a test explained by O’Connor — was applied wrongly.  Alito applied O’Connor’s test and said that the Pennsylvania law did not create an "undue burden".  On appeal, O’Connor applied O’Connor’s test, and said that it did create an "undue burden".  So Alito got bitch-slapped a bit.  Heh.  Billmon has some additional thoughts here.

UPDATE:  Alito (as well as John Roberts) were both on Dobson’s short list.  No wonder some are calling Bush "the wingnut’s waterboy".

UH-OH:  Does Alito have a Vietnam/AWOL problem?

WHAT MAY BE MY FINAL THOUGHT/MOODMatt Yglesius said it best:

I see no reason to think this nomination will be all that different from the last time around [John Roberts]. Republicans will be thrilled. Democrats will be unhappy.

After an uninformative confirmation hearing, Alito will be confirmed by a comfortable margin to the general approval of highbrow centrist opinion. He’ll proceed to spend the next 20 years on the Court making America a somewhat worse place than it might otherwise be. Conservatives will continue to fail in their efforts to transform the country into some idealized version of the 1950s and will presumably blame this on college professors and Anthony Kennedy.