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Thursday, December 7, 2023

Dissecting Sam Alito

To most Americans, Samuel Alito remains as much a "stealth" candidate for Supreme Court as he was the day that President Bush named him to replace the retiring Sandra Day O'Connor, the justice at the center of a deeply divided court.

To most Americans, Samuel Alito remains as much a “stealth”
candidate for Supreme Court as he was the day that President Bush named
him to replace the retiring Sandra Day O’Connor, the justice at the
center of a deeply divided court.

But Alito’s work on the
federal bench for 15 years, and as a Reagan Justice Department official
before that, read large on the radar screen of the Bush White House and
its outside advisers.

Since Bush tapped Alito Oct. 31, outside
groups and senators across the political spectrum have scrutinized the
370 opinions he has written on the Philadelphia-based 3rd U.S. Circuit
Court of Appeals and his earlier work as an assistant U.S. attorney

The 600-pageWhite House briefing book on Alito calls him a “mainstream” judge, and conservative groups say they agree.

As head of two outside groups working to confirm judges for Bush,
Boston University law school dean emeritus Ronald Cass cites the
American Bar Association’s highest “well qualified” rating for Alito as
evidence that his opponents “are the ones who are out of the

Others suggest Alito is far more conservative than supporters paint him:

_ Cass Sunstein, a University of Chicago professor and author of
“Radicals in Robes,” says his study of Alito’s 80 appeals court
dissents finds he’s 91 percent more conservative than other appellate
judges, including appointees of Ronald Reagan and the Bushes, father
and son.

_ Conservative lawyer Bruce Fein, a Reagan Justice
Department colleague of Alito, calls it “disingenuous” to liken Alito’s
track record to O’Connor’s on such hot-button issues as abortion,
affirmative action and church-state separation. Alito’s backers “are
tying to portray him as something he’s not,” Fein complains.

That’s why senators will closely question Alito about the following key
entries in his long paper trail when Senate confirmation hearings start
Monday. The hearings begin with a new Harris poll showing a third of
the public supporting confirmation, a third opposing it and a third
wanting to know more.

ABORTION: Alito assured Senate
Judiciary Chairman Arlen Specter, R-Pa., in advance of the hearings
that his personal views on abortion “would not be a factor” if the
Senate confirms him to the Supreme Court.

Before now, Alito
most clearly outlined his views on Roe v. Wade, the landmark 1973
Supreme Court ruling that made abortion a nationwide constitutional
right, in a pair of 1985 memos he wrote as a Reagan Justice Department

_ In his 1985 application for promotion from Justice
Department career lawyer to a political post, Alito said he was
“particularly proud” to contribute to administration court arguments
that the “Constitution does not protect a right to an abortion.”

_ The second 1985 memo urged the solicitor general to ask the Supreme
Court to allow incremental state restrictions on abortion. To Alito,
this should be part of a long-term strategy “to advance … the
eventual overruling of Roe v. Wade, and in the meantime, of mitigating
its effects.”

Alito’s 3rd Circuit dissent in Planned Parenthood
v. Casey also got the Supreme Court’s attention in 1992: In that 5-4
decision, the Supreme Court used the Casey case to reaffirm the core
holding in Roe v. Wade legalizing abortion and to adopt O’Connor’s test
that restrictions mustn’t impose an “undue burden” on abortion rights.

The Casey case upheld some Pennsylvania restrictions but struck down
the requirement that a woman notify her husband in advance because of
the danger to victims of spousal abuse. In his 3rd Circuit dissent,
Alito said spousal notification isn’t an undue burden because it
doesn’t affect most women.

Bush’s expansive view of his constitutional powers post-9/11 will be a
lightning rod for the Senate Judiciary Committee even though Alito
hasn’t ruled on touchy war-on-terror issues. Two reasons for Senate

_ Alito used a 2000 speech to the Federalist Society
to advance a far-reaching theory of presidential authority. According
to him, under the Constitution, “The president has not just some
executive powers, but has the executive power _ the whole thing.”

_ O’Connor, the justice Alito would replace, rejected Bush’s claim that
he has the power to indefinitely detain anyone he designates an enemy
combatant in a 2004 decision holding that a “state of war is not a
blank check for the president.”

Given Bush’s order for
warrantless domestic surveillance, a 1984 Alito Justice Department memo
also has taken on added importance. The memo argued that former
Attorney General John Mitchell should be shielded from suit by the
target of a 1972 wiretap later judged unconstitutional.

critics suggest the memo could indicate thinking on Bush’s claim that
he has inherent constitutional authority to eavesdrop on Americans.
Alito’s memo doesn’t address the legality of wiretapping, however, but
the circumstances in which a target of illegal surveillance has legal
recourse against responsible officials.

Where executive power
involves police, prosecutors and the like, Sunstein reports that Alito
tends “with striking regularity” to defer to “established institutions
… (and his opinions) do not show a flamboyant judge seeking to
revolutionize the law.”

A case in point: In Doe v. Groody
(2004), 3rd Circuit dissenter Alito said a police officer couldn’t be
sued for strip-searching a 10-year-old girl even though she wasn’t
named in the warrant. Alito said the officer reasonably believed he had
permission to search her.

opinion in United States v. Rybar (1996) should be a Senate sore point:
He said Congress’ constitutional powers “to regulate Commerce … among
the several states” doesn’t include regulation of machine guns, a
departure from every federal appeals court to address the question.

Congressional authority to regulate guns or anything else has been a
raging controversy since the Supreme Court decided U.S. v. Lopez in
1995, a 5-4 ruling invalidating the Gun-Free Schools Act for exceeding
Congress’ commerce powers.

Lopez was the first of 34 Supreme
Court 5-4 rulings since 1995 to strike down acts of Congress on
commerce-clause or states’-rights grounds. In each, O’Connor was the

She also was in the 6-3 majority in Nevada v. Hibbs
(2003), finding that Congress made its case for covering state
government under the Family and Medical Leave Act. Alito voted to
overturn that same law as a congressional overreach in Chichester v.
Pa. Department of Community and Economic Development two years before.

AFFIRMATIVE ACTION: Here, too, O’Connor’s vote has been key, most
recently in her 5-4 decision in Grutter v. Bollinger (2003) upholding
continued use of race as one of many factors in college admissions.

In his 1985 job-application memo to then-Attorney General Edwin Meese,
now a top outside adviser to Bush on judgeships, Alito wrote he was
“particularly proud of my contributions in recent cases in which the
government has argued in the Supreme Court that racial and ethnic
quotas should not be allowed.”

In 1997, Alito and the 3rd
Circuit upheld a white teacher’s reverse-bias lawsuit against the
Piscataway, N.J., school board for firing her instead of a black
teacher with identical qualifications when budget cuts forced layoffs.
The Supreme Court took the case to refine prior rulings on affirmative
action in employment, but civil rights groups settled rather than risk
a potential Supreme Court loss.

Senators also will question
Alito about his membership in Concerned Alumni of Princeton, a 1970s
group that fought the admission of women.

On the separate issue
of employment discrimination, critics say Alito’s 3rd Circuit opinions
in Sheridan v. Du Pont Co. (1996) and Bray v. Marriott Hotels (1997)
took a tough approach toward letting workers bring job bias complaints.

VOTING RIGHTS: With O’Connor the court lynchpin on
political remaps, senators will quiz Alito on voting rights and

Alito has little judicial history on this topic
but, on that same 1985 Justice Department job application, he wrote of
his “deep interest in constitutional law motivated in large part by
disagreement with Warren Court decisions, particularly …

The 1960s Warren court landmark decisions
central to his disagreement presumably start with Baker v. Carr (1963)
and subsequent rulings that established the constitutional principle of
“one person, one vote.”

Sen. Joe Biden, D-Del., says Alito’s
redistricting answers may be more important to his judicial promotion
than abortion, especially when the Supreme Court has agreed to consider
Texas’ 2003 congressional remap. That redistricting, tied to Texas Rep.
Tom DeLay’s money-laundering indictment and loss of his House
Republican leader’s post, gave Republicans five more seats in Congress
and solidified GOP control.

CRIMINAL LAW: In 15 years on
the 3rd Circuit, Alito has sided overwhelmingly with government
prosecutors and against the accused, according to analyses of his
voting patterns in criminal cases by The Washington Post and others.

His dissent refusing to overturn the death sentence of Ronald Rompilla
has drawn special attention. Rompilla claimed he was represented by
incompetent counsel who failed to investigate or present any evidence
that his parents tortured him as a child and that he suffered organic
brain dysfunction because of fetal alcohol syndrome. The Supreme Court
voted 5-4 last term to overturn Rompilla’s death sentence, with
O’Connor as tie-breaker.

A1984 Justice Department memo by Alito
also has drawn attention: In it he said he saw no constitutional
problem with police shooting to kill an unarmed teen seen fleeing the
site of a $10 Memphis home burglary, calling the shooting “reasonable.”
The Supreme Court used the case, Tennessee v. Garner (1985), to set a
bright-line rule nationwide forbidding routine police use of deadly
force against fleeing suspects who pose no danger.

CHURCH-STATE: Alito’s appeals court votes on church-state issues follow
the Supreme Court’s “reindeer test” that allows public displays of
sacred items so long as they appear alongside their secular

In ACLU of New Jersey v. Schundler (1999), Alito
and the 3rd Circuit upheld a Jersey City, N.J., holiday display against
an Establishment Clause challenge because it featured a creche and
menorah along with Santa and Frosty the Snowman.

But Alito
dissented in ACLU of New Jersey v. Black Horse Pike Regional Board of
Education (1995), arguing that prayer at public high school graduations
doesn’t violate the Establishment Clause if students vote to have a
prayer and offer it themselves. The Supreme Court subsequently struck
down such prayers at public-school graduation and football games for
unconstitutionally compelling students against conscience.

Separately, Alito voted in Fraternal Order of Police v. Newark (1999)
that the Newark police department’s refusal to let Muslim officers wear
beards for religious reasons violates the Free Exercise clause of the
First Amendment to the Constitution.

(Contact Mary Deibel at DeibelM(at)