CWA Corrects the Record on Judge Samuel Alito’s Key Decisions     11/1/2005

The left is distorting the Supreme Court nominee’s outstanding record.

BACKGROUND

The Left is wasting no time attacking Judge Alito by implementing its nomination playbook--insert name of nominee--to dismay, distort, deceive and delay. They're out to create fear and hysteria by intentionally distorting Judge Alito's constitutional philosophy and his opinions from his time on the U.S. Court of Appeals for the Third Circuit.

Above all, they want to delay his hearing and a Senate up-or-down vote in order to keep Justice Sandra Day O'Connor on the Court. The truth is that Judge Alito's opinions demonstrate respect for the written Constitution as the Supreme Law of the Land, rather than unelected judges; and his commitment to judicial restraint, fairness, the rule of law and the limited role of the courts to interpret and not create law.

I had the opportunity to meet one of his former law clerks on the Third Circuit last night as we were in the "green room" of a television studio. This man self-identified as "liberal-left" politically. He said Judge Alito will be "great on the Supreme Court" because "he believes in the limited role of a judge … doesn't insert his policy beliefs into his decisions … he's a great judge."

ABORTION: The Pennsylvania Legislature, not Judge Alito, wrote the law, which included spousal notification. Notice isn't consent.

1. In Planned Parenthood v. Casey, 947 F.2d 682 (3rd Cir. 1991), the U.S. Court of Appeals for the Third Circuit upheld four of five provisions of a Pennsylvania statute regulating abortion that the Legislature enacted and the governor signed into law. Planned Parenthood made a facial challenge to the law in federal court. [A facial challenge claims that the law is invalid on its face and cannot be enforced against anyone. Unless a court finds that there is no conceivable set of circumstances in which the law can be applied consistent with the Constitution, the law must be upheld.] The district court upheld all five provisions. Planned Parenthood appealed to the Third Circuit. Judge Alito voted to uphold the fifth provision as well, which required married women to simply notify their husbands when they decided to have an abortion. The law did not require the husband's consent or give him veto power over his wife's decision. In evaluating the statute, Judge Alito determined that the Legislature could have a rational basis for believing that some married women, who are initially inclined to have an abortion without their husband's knowledge because of perceived problems, such as economic hardships, future plans or their husbands' previously expressed opposition, might be obviated by discussion prior to the abortion. Judge Alito believed that the notice section did not place an "undue burden" on a woman because it included four exceptions, any one of which meant that the woman could have the abortion without giving notice to her husband: (a) if the woman believed the husband was not the father, (b) if the husband could not be found after diligent efforts, (c) if the pregnancy was the result of sexual assault by the spouse that was reported to authorities, or (d) if the woman believed the notice would likely result in bodily harm to her.

   Judge Alito's dissenting opinion reveals how carefully he applied Justice Sandra Day O'Connor's "undue burden" test and concluded that the notice provision of the statute, like the other provisions, was consistent with the Constitution and Supreme Court precedents in Webster v. Reproductive Health Services and Hodgson v. Minnesota. Justice O'Connor had written that the "undue burden" test would allow many restrictions on abortion.

   Planned Parenthood appealed to the U.S. Supreme Court. Justice O'Connor reinterpreted her own "undue burden" standard and rejected much of the Court's prior case law. She joined a plurality of justices to hold that the spousal notice provision was an unconstitutional "undue burden." Several justices strongly dissented, agreeing with Judge Alito.

2. In June 2000, the U.S. Supreme Court held in Stenberg v. Carhart that Nebraska's ban on partial-birth abortion was unconstitutional. On July 26, 2000, the Third Circuit issued its ruling in a case involving a challenge by Planned Parenthood to the New Jersey law banning partial-birth abortion. Judge Alito wrote a separate concurring opinion to clarify that Carhart "dictates the result." He emphasized that it was the responsibility of a lower court to "to follow and apply controlling Supreme Court precedent." Judge Alito explained:

First, the New Jersey statute, like its Nebraska counterpart, lacks an exception for the preservation of the health of the mother. Without such an exception, the New Jersey statute is irreconcilable with Part II-A of Carhart.

Second, the Supreme Court's holding in Part II-B of Carhart is also applicable here. As noted, in that portion of its opinion the Court held that the Nebraska statute applied, not only to the "dilation and extraction" or D & X procedure, but also to the more commonly used D & E procedure. The wording of the relevant provisions of the Nebraska statute is nearly identical to that of the New Jersey statute. Thus, the Supreme Court's holding in Part II-B of its opinion in Carhart must be regarded as controlling in this case.

It is important to remember that while all lower courts consider themselves bound by Supreme Court precedent, the Supreme Court itself is not.

RELIGIOUS LIBERTY

Judge Alito has consistently protected the free exercise rights of all religious people, including minority religions. He has ruled against government actions that discriminate or unfairly burden religion, and he has rejected government attempts to use the Establishment Clause to remove all things religious from the public square.

1. Judge Alito ruled in ACLU v. Schundler (1999), that a city did not unconstitutionally "endorse" religion when it erected a "holiday" display that included a crèche, a menorah, a Christmas tree, a Santa Claus, Frosty the Snowman, a sled and Kwanzaa symbols. He followed the Supreme Court's ruling in Lynch v. Donnelly.


2. Writing for a unanimous court, Alito struck down a police policy that required Sunni Muslim police officers to shave their beards despite what they believed to be their religious obligation. The policy made an exception for medical reasons but not religious reasons. Fraternal Order of Police Newark Lodge No. 12 v. City of Newark (1999).


3. In Child Evangelism Fellowship of New Jersey (2004), Alito struck down a school policy that allowed nonreligious student groups to distribute informational materials but prohibited religious student groups to do the same.


4. In Blackhawk v. Pennsylvania, Judge Alito and his colleagues unanimously concluded that Pennsylvania officials had violated the religious freedom rights of a Lakota Indian.


5. In C.H. v. Oliva (2000), Alito dissented from a majority ruling that there was no free speech violation when a school would not permit a young child to read a religious-themed story to his class, even though others were allowed to read from a story of their choice. The school also removed his Thanksgiving poster in which he wrote that he was most thankful for Jesus.


6. In ACLU v. Township of Wall (2001), Alito held that the plaintiff challenging a municipal "holiday" display lacked standing under the Constitution to bring the lawsuit.

CIVIL RIGHTS

1. First Amendment v. penological interests: In Waterman v. Farmer (1998), Judge Alito upheld the constitutionality of a state law that prohibited inmates incarcerated in a correctional facility for recidivist sex offenders to possess pornography. The court concluded that the presence of pornography might interfere with the inmates' treatment and rehabilitation.


2. Sexual harassment: In Robinson v. City of Pittsburgh (1997), Judge Alito reinstated a police officer's lawsuit for sexual harassment. He ruled that the officer did not have to incur monetary loss in order to show that she was discriminated against by her employer.


3. Sexual harassment: In Konstantopoulos v. Westvaco Corp. (1997), Alito agreed that the claimant had not proved sexual harassment when her only evidence was that co-workers had "squinted their eyes and shook their fists" at her, and that someone had once thrown out her lunch.


4. School Speech Code: In Saxe v. State College Area School District (2001), Judge Alito authored the majority opinion that held unconstitutional an anti-harassment policy the school had adopted. The policy banned "unwelcome verbal, written, or physical conduct which offends, denigrates or belittles an individual." Under the policy, a homosexual who merely felt uncomfortable hearing the Gospel could have a fellow Christian student disciplined. Alito noted that the clauses prohibiting "disparaging speech directed at a person's 'values' strike at the very heart of moral and political discourse - the lifeblood of constitutional self government (and democratic education) and the core concern of the First Amendment."


5. Immigrant Asylum: Judge Alito authored a majority opinion in Fatin v. INS (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. He 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.


6. Disability: Judge Alito authored a majority opinion in Shore Regional High School Board of Education v. P.S. (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.


7. Race: Judge Alito authored a majority opinion in Williams v. Price (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.


8. Due process: In a dissenting opinion in Homar v. Gilbert (1996), Judge Alito argued that a state university did not violate the procedural due process rights of a campus policeman when it suspended him without pay and without a prior hearing upon learning that he had been arrested and charged with drug offenses. The Supreme Court reversed and remanded the case on other grounds, agreeing with Judge Alito's reasoning that no hearing was required prior to the suspension because the drug charges showed that the suspension was not baseless.

FEDERALISM

1. Judge Alito dissented from a Third Circuit ruling in U.S. v. Rybar (1996). He found that a federal law that prohibited the intrastate possession of machine guns violated the Commerce Clause of the U.S. Constitution. He followed a Supreme Court ruling in United States v. Lopez that struck down a very similar federal law that banned possession of guns near schools. Alito wrote that states may ban possession of machine guns and that Congress may as well, if it found that intrastate possession substantially affected interstate commerce.


2. In Chittister v. Dep't of Community and Econ. Dev. (2002) Judge Alito wrote for a unanimous court, which included Clinton and Johnson appointees, that parts of the 1993 Family and Medical Leave Act violated states' sovereign immunity under the 11th Amendment. The court noted that every state in the Third Circuit had already enacted generous family-leave policies and that the federal government had the right to do the same. At the time, three other circuit courts agreed and the 9th Circuit agreed as to one provision of the Act. The Supreme Court reversed the 9th Circuit ruling. Justices Scalia, Thomas and Kennedy dissented.

Printer Friendly Version

Recent Articles

Supreme Court Year in Review 2007-2008

Supreme Court Back in Session

Protect Children, Not Charlatans

Constitutional Blunder

Enormous Implications in Medellín Supreme Court Case

Alarming: The Dissent's Opinion in Gonzales v. Carhart

CWA President Wendy Wright Reacts to the Court’s PBA Decision

O'Connor Connects Court Critics to Cookie Caper

A Brief Look at the Arguments in Gonzales v. Carhart

A Brief Look at the Arguments in Gonzales v. Carhart