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Alito's troubling record

By ROBYN E. BLUMNER
Published November 6, 2005

Not everything about the nomination of Samuel Alito Jr. to the high court inspires shivers and cold sweats in the middle of the night, but nearly so.

After President Bush seriously miscalculated his personal credibility with the nomination of "the nice lady down the hall," he changed course and nominated Alito, a star within conservative legal circles.

With 15 years' experience as a federal appeals judge on the 3rd U.S. Circuit Court of Appeals and a sterling resume, Alito is considered very smart and staunchly conservative. That also makes him highly provocative for Democrats.

But Bush wanted to pick a fight, and right-wing groups have been rarin' for one. Bush might not be too adept at governing, but he's happy to launch a war and send others into battle.

In reviewing a number of Alito's opinions and dissents, the good news is that Alito doesn't really earn the moniker "Scalito." His writings don't drip with scathing sarcasm or make broad reactionary pronouncements in the way Justice Antonin Scalia's do. Alito takes a measured tone. His analysis is sober and narrow, even when dead wrong.

On substance, there are even some cases involving religious freedom and freedom of speech that are on the mark. In one, Alito took the side of a Muslim police officer who wanted to wear a beard in conformance with his religion, despite a department policy barring them.

In another, Alito struck down a school district's antiharassment policy on First Amendment grounds. Students who believe that homosexuality is a sin brought the case, asserting that the policy prevented them from expressing their views. Alito wrote for the majority that even speech "that listeners may consider deeply offensive" is protected.

You have to hope that Alito would be as welcoming to the free speech claims of students who promote anarchy or denounce school administrators as he was to students who seek to disparage gays. As a student at Princeton, Alito argued in a paper that laws criminalizing sex between gays should be repealed and discrimination against homosexuals in hiring should end. Encouraging stuff, though somewhat ancient.

On the other side of the ledger are the cases that hint at how far a Justice Alito would tilt the court rightward. Here, the record is thicker.

While attention has focused on Alito's willingness to let stand a Pennsylvania antiabortion measure - including a provision that directed women to notify their husbands before obtaining an abortion - far more problematic is the way Alito would rule on federalism.

Congress uses its authority under the Commerce Clause to pass this nation's myriad environmental, labor and health and safety laws. In a highly activist way, the Rehnquist court, in mostly 5-4 rulings, ushered in a new age of skepticism over Congress' Commerce Clause power, striking down federal statutes like trees before Paul Bunyan's ax.

Indications are that Alito would be a solid proponent of this trend toward states' rights. In a 1996 case, Alito said he believed that a federal law barring the transfer and possession of machine guns was unconstitutional. His dissent wondered how "the purely intrastate possession of machine guns has a substantial effect on interstate commerce."

This does not bode well for environmental laws, which often affect water bodies and endangered species contained within a single state.

He also disputed Congress' authority to make state employers comply with the Family and Medical Leave Act - a position that the U.S. Supreme Court later rejected in another case.

In trying to draw a bead on Alito's judicial record, I'd say he doesn't much like it when people try to assert their rights in court. Alito tends to side with the government and big business. In one Fourth Amendment case, Alito supported the police over a mother and her 10-year-old daughter who were strip-searched during a drug raid, despite a faulty search warrant. He isn't terribly generous to civil rights litigants - often interpreting antidiscrimination laws narrowly or throwing up new legal roadblocks.

In a case decided earlier this year, Alito wrote an opinion blocking a civil rights suit by a state prison inmate because the prisoner had failed to file a timely notice of appeal. The prisoner had no counsel and failed to get the filings in on time because he was transferred to another prison and didn't receive the district court ruling against him until time had expired.

However, when a religious litigant pressed to inject faith into the public schools, Alito was happy to oblige. In 2004, Alito wrote the court's decision on behalf of the group Child Evangelism Fellowship of New Jersey, whose purpose is to "evangelize boys and girls" as young as 5.

The group wanted its materials distributed to children by teachers during school time and posted on school walls, like those of more secular afterschool groups. The school superintendent rejected Child Evangelism's request on church-state separation grounds. But Alito found this to be unconstitutional viewpoint discrimination. He dismissed the concern that such young children would see the school as promoting religious activities - a rather implausible stance, I'd say.

In recent conversations with senators, Alito has apparently indicated that the Supreme Court has gone too far in separating church and state.

For these reasons, and Alito's 90-year-old mother's assurances that her son is "against abortion," the Christian Right has been gleeful since his nomination. As far as I can tell, it has cause to be; and for those of us who think the nation's high court has a duty first and foremost to protect the Bill of Rights and stand for the little guy, the phrase "in your dreams" springs to mind.

[Last modified November 4, 2005, 19:19:02]