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U.S. Supreme Court

Mostly measured, but Alito can get fiery

Many of his opinions indicate the Supreme Court nominee is largely dispassionate, but certain topics draw out his energy.

By BILL ADAIR
Published November 13, 2005

WASHINGTON - For a Thanksgiving assignment, the kindergarteners in a New Jersey school had to make a poster of something for which they were thankful. Zachary Hood drew a picture of Jesus.

The teacher hung it on a wall with posters from other children, but someone removed it because of concerns that a religious figure should not be displayed at the public school.

A year later, when Zachary was in first grade, students were asked to read stories to the class. Zachary chose one from the Beginner's Bible, but his teacher said he could not read it aloud because of its religious content. He would have to read it to her privately.

Zachary's mother sued, saying his First Amendment rights had been violated. The 3rd U.S. Circuit Court of Appeals got tied in knots over the case. That prompted a spirited dissent from Judge Samuel Alito, who believed there was nothing wrong with the boy's poster.

"School authorities are not permitted to discriminate against student expression simply because of its religious character," wrote Alito, now President Bush's nominee to the Supreme Court.

Alito's lengthy and passionate dissent in the 2000 case of C.H. vs. Oliva provides a glimpse into his judicial temperament, expressed here as frustration with colleagues that he believed were ducking an important controversy.

Legal historian David Garrow called it "a remarkable and unusual opinion because there is so much energy in it. I think he has extremely demanding standards for judicial honesty."

But others say the passion seems to come from Alito's strong beliefs in free expression, especially religious expression.

Analysts said the Hood case and several others indicate Alito has a broad view of free speech and that he supports religious symbols on government property. But Barry Lynn, executive director of Americans United for Separation for Church and State, says they suggest Alito "has a tremendous insensitivity to the rights of religious minorities and a real disconnect about the effects of proselytizing on very young children."

As a federal appellate judge for the past 15 years, Alito has voted on more than 3,000 cases and written about 300 opinions.

Law professors and Senate staffers are still studying those opinions but say a few broad themes have emerged. Alito tends to favor companies over employees and favor government over the accused. He sits on a relatively liberal court, but his votes are usually conservative.

"Every time he has wiggle room, he wiggles right," said Edward Lazarus, a former Supreme Court clerk who wrote Closed Chambers, an inside look at the court.

On First Amendment cases, Alito has often defined press and religious freedom quite broadly.

In a case involving a holiday display in Jersey City, N.J., he wrote that it was permissible for the city to include a nativity scene and menorah because the display included nonreligious figures such as Frosty the Snowman and Santa Claus.

Alito dissented from a ruling that ended a public school policy allowing student-led prayer at graduation ceremonies if students voted in favor of such a prayer.

Alito was part of a unanimous three-judge panel that struck down a policy of the Newark Police Department that required officers to shave their beards. He agreed with Muslim police officers that they were entitled to keep their beards for religious reasons.

In another case, Alito wrote a majority opinion striking down a school district's antiharassment policy after a group of Christian students complained it prevented them from speaking out against homosexuality. Alito, citing a landmark Supreme Court decision on students' freedom of speech, said the policy was "unconstitutionally overbroad."

The Reporters Committee for Freedom of the Press, which promotes media access and free speech, said Alito has a good record on First Amendment cases. The group said in a report last week that he has "a strong tendency to side with those arguing free speech cases - with the possible exception of federal prisoners."

The question in Zachary's case was simple: whether school officials violated his constitutional rights to free expression by removing the Jesus poster and prohibiting him from reading his Bible story aloud.

But the case was complicated because Zachary's mother, Carol Hood, sued several school officials and the state department of education on the two matters. The courts had to sort out which party was responsible for each one.

A district court ruled against Hood, who then appealed to the 3rd U.S. Circuit Court of Appeals. A three-judge panel of that court upheld the ruling, so she appealed for a hearing before all 12 judges on the court, including Alito.

The 12 judges decided the issue of the Jesus poster should go back to the district court so Hood could file an amended complaint. But they split 6-6 on the teacher's decision to stop Zachary from reading his story to the whole class. That meant the lower court's decision prevailed.

Alito is known for being a low-key and measured judge, but his dissent shows he was exasperated by the decision to return part of the case to the lower court. He accused his colleagues of passing the buck.

"The court simply does not want to confront Zachary's First Amendment claim," he wrote.

Alito bristled at how Zachary was treated by school officials and even gave a detailed explanation of how he would rule on the central question.

"I would hold that discriminatory treatment of the poster because of its "religious theme' would violate the First Amendment," he said, adding that students have a right to express religious views as long as they are part of an assignment or class discussion.

"Zachary's teacher in effect asked him a question: What are you thankful for as Thanksgiving approaches? Zachary was entitled to give what he thought was the best answer," Alito wrote.

Legal analysts say Alito's strong words indicate he feels this is an important topic.

"He is a pretty dispassionate writer," said Lazarus, "but you can feel the passion in this case."

It indicates that Alito "has a deep concern of religion being discriminated against in the public square," Lazarus said.

The portion of the case involving the Beginner's Bible was appealed to the U.S. Supreme Court in 2001, but the court declined to hear the case. The portion involving the Thanksgiving poster went back to the lower court and the school district agreed to pay $35,000 to Carol and Zachary Hood to settle the case.

The controversy prompted the federal government to issue guidelines that say "students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions."

They have been dubbed "Zach's Rules."

Washington bureau chief Bill Adair can be reached at adair@sptimes.com or 202 463-0575.

[Last modified November 13, 2005, 03:00:43]