Does the "cruel and unusual" clause of the Eighth Amendment preclude a state from executing a mentally retarded person for premeditated and willful murder? Suppose the culprit was in his teens (under 18) at the time of the murder. Can Congress, under authority to regulate commerce (narcotics), outlaw California's use of marijuana to ease the pain of death? Or Oregon's assisted suicide law?
Does the "establishment of religion clause" prevent the display of the Ten Commandments in a courthouse? In a public park?
Can New Hampshire enforce a parental notification abortion law without an exception for medical emergencies?
Can Tom Delay and the Republican Texas legislature redraw congressional district lines and replace five Democratic congressmen with Republicans? May a state put a cap on the amount spent in statewide elections?
At a more mundane level, does the workday for overtime purposes begin when workers begin to don protective clothing or when they arrive at the work station?
These are the questions decided by the Supreme Court, questions affecting the lives of all of us. The answers given often depend on the political and social orientation of the justices (yes, they "make" law).
In recent years, a coalition of justices rested at one end of the spectrum: the late William Rehnquist, Antonin Scalia, Clarence Thomas and often Anthony Kennedy. At the opposite end sat John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and David Souter. Four to four. In the middle, siding sometimes with the Rehnquist right wing, sometimes the Stevens left, sat Justice Sandra Day O'Connor.
It is no exaggeration to say that on many occasions, the law of the United States is what Sandra Day O'Connor says it is. It is no surprise then, that loins were girded for a fight when O'Connor announced her intended retirement.
Alarm bells rang on the left when President Bush announced an intention to replace her with John Roberts, corporate America's attorney of choice, the darling of the right, who just ruled that the president had authority to try the Guantanamo Bay detainees with drum-head military tribunals, if at all. Opposition melted when Chief Justice Rehnquist died and President Bush decided Roberts could serve him better as the chief justice. Only 22 Democrats voted against his nomination; substituting Roberts for Rehnquist did not change the equation on the Supreme Court.
That left the pivotal O'Connor seat to be filled. President Bush chose Harriet Miers, his chief of staff. Little was known about her. She was the epitome of a stealth candidate. Alarm bells sounded this time on the right. Where was the candidate "the likes of Scalia and Thomas" promised by Bush in two presidential campaigns? Bush sought to quell the mutiny. He said he had looked into her heart and her (conservative) views would not change. When this failed, the White House referred to her membership in the Valley View Christian Church, evangelical and decidedly anti-abortion.
Doubts of her conservatism still remained and questions arose as to her competence. George Will wrote that she did not rank in the top 10,000.
Finally, after 28 days, Senate majority leader Frist called the White House to say he did not have the votes. So Miers asked the President to withdraw her nomination--no "up-or-down" vote by the Senate, not even a hearing by the Judicial Committee.
Within hours, the President announced his nomination of Samuel Alito Jr.
A brief bio
Everyone interviewed by the press--his friends from high school, college, law school, the Department of Justice--agree that Alito is a "nice guy," "easy going," someone who is good to work for, work with, or even work against.
But they agree that he is very conservative and his appointment would move the court to the right. Some close friends call him "Scalia-lite" referring to the right wing of the court's spectrum.
Sam Alito Jr. was born on April Fool's Day 1950 in Trenton, N.J. His father, an Italian immigrant, was the well regarded head of the New Jersey Office of Legislative Services. When he was the editor of his college paper, Alito Sr. drew the wrath of the college administration when he scolded it for benching a black basketball player to accommodate an opposing team from a segregated school. Nominee Alito told this story during courtesy calls to senators, where bringing attention to family connections is an integral part of the current judicial confirmation process. Colleagues of the elder Alito had never heard about this episode, but they were not surprised. There are no similar stories about Sam Alito Jr.
Alito attended a public high school in Trenton, where he was the class valedictorian, during the tumultuous time of the Vietnam War and the assassination of Martin Luther King Jr. Any political views he had at that time were not known to his fellow debate team members.
Alito went on to attend Princeton (Phi Beta Kappa) where he was one of a handful to join the ROTC. He opposed a moratorium on classes to protest the Vietnam War.
Upon graduation he was commissioned a second lieutenant and served the next eight years in the Army Reserve. The reserves were not called upon during the Vietnam War. His military obligations in no way interfered with his legal career. He attended Yale Law School (class of 1975), where he won a series of academic prizes.
This secured a prestigious clerkship with Judge Leonard Garth on the U.S. Court of Appeals for the Third Circuit, hearing appeals from federal courts in New Jersey, Pennsylvania, Delaware and the Virgin Islands. After the year's clerkship, he served a four-year stint (1977-1981) as an assistant U.S. attorney in New Jersey.
He left for a chance to work in Washington for the Reagan administration, first in the Solicitor General's Office (he argued 12 cases before the Supreme Court of the United States) and then as Deputy Assistant Attorney General under Attorney General Ed Meese.
In 1987 he was appointed U.S. Attorney for New Jersey, and in 1990 President George H.W. Bush appointed him to a seat on the Third Circuit.
Alito's Senate confirmation hearing is set to start Monday, Jan. 9, and much more will be known about him thereafter. But the press and the interest groups have already told us much about where he stands on issues.
Alito was a member of Concerned Alumni of Princeton, a group organized in 1972 by alumni upset by what was going on at their alma mater. The group opposed the admission of women. It opposed affirmative action admission policies and complained that "alumni children comprise 14 percent of each entering class, compared with 11 percent for blacks and Hispanics." It defended the exclusive "eating clubs" with their restrictive admission policies. Black students did not belong to the clubs. The group opposed a system of residential colleges, each with its own dining halls, aimed at ending de facto campus segregation. Finally, the Concerned Alumni complained that the university was "diluting the explicitly Christian character of the school."
In 1985 Alito applied for a promotion within the U.S. Department of Justice to deputy assistant to Attorney General Edwin Meese III in the Office of Legal Counsel. To convince them he should get the job, he filed a telling personal qualification statement.
He began with the words "I am and always have been a conservative," influenced by William Buckley's National Journal, the 1964 Goldwater campaign, and strong disagreement with the Warren Court decisions. He singled out the Warren Court decisions in criminal procedure (Miranda), reapportionment (one man, one vote) and church-state matters (school prayer).
He was "particularly proud" of his work in the Department of Justice on cases arguing that "racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion." He noted his membership in the Concerned Alumni of Princeton. Later, Alito sought to downplay his comments by telling Senators they were simply the views of an "advocate seeking a political job." Attorney General Meese was a conservative, so Alito sought to please him. If Alito dissembled to the Attorney General, could he be trusted elsewhere? Puffing a vitae to please a prospective employer is no way to gain credibility, and his recent effort to minimize it raises another point of honor.
In his 1990 Court of Appeals confirmation hearing, Alito told the Senate committee he would recuse himself from any case involving Vanguard and Smith Barney, the companies that managed his investments, and in any case brought by his sister's law firm. He broke his word.
In the Vanguard case, he first blamed his participation on a "glitch in the clerk's office." Then, he said the pledge concerned conflicts during his "initial service" and he had no obligation to step aside as his service continued.
Regarding his sister's law firm, he said the pledge referred to the law firm she was in at the time of the confirmation, not the firm she was in at the time of the suit.
None of these responses found favor with the Democrats. On the other hand, the Republicans accused Democrats of trying to "smear the judge" and argued Alito should be measured on his record.
Alito wrote more than 200 opinions in his 15 years on the bench. Only the "hot button" issues that tell the man can be explored.
Alito noted in the memo to Attorney General Meese that he was "most proud" of his efforts to overrule Roe v. Wade. According to his mother, his views have never changed. "Of course he is against abortion," she told the Associated Press the day the nomination was announced.
In the landmark case of Planned Parenthood v. Casey, Judge Alito was the sole member of the Third Circuit to sustain the Pennsylvania law requiring married women to notify their husbands of a contemplated abortion. A majority reasoned that a woman does not lose her constitutional rights when she marries.
In two other abortion cases, the Third Circuit struck down New Jersey's ban on "late-term" abortions and held that an unborn fetus is not a "person" under New Jersey's wrongful death statute. Alito wrote brief, grudging concurring opinions pointing out the results were required by recent Supreme Court holdings.
In 1987, while working in the Department of Justice, Alito wrote a memo opposing the United Nations Convention on the Rights of the Child. Why? Because it infringes on the right of state governments to set policies on the death penalty for children. His decisions generally reflect this permissive view on capital punishment.
Another case giving a clearer indication of Alito's views was Rompilla v. Horn, concerning effective assistance of counsel. Rompilla was convicted of murder when he robbed and stabbed to death a tavern owner and set him on fire. At the sentencing stage, the prosecution, after notifying defense counsel, told the jury that this was a repeat offense. Earlier, Rompilla had been convicted of burglarizing another bar where he raped the female owner at knife point. On this evidence the jury sentenced Rompilla to death.
His new lawyers argued "inadequacy of counsel." Just down the hall in the clerk's office was the file of the earlier case. It showed that Rompilla, who functioned at a third grade level, suffered an abusive childhood (his alcoholic father locked him in a small wire mesh dog pen filled with excrement for punishment), and prison records showed he suffered from schizophrenia, paranoia and neurosis. The new lawyers argued that the earlier defense team had been inadequate in not investigating this material and argued it might have persuaded at least one juror to vote for life over death. Alito wrote the opinion upholding the death sentence (the Supreme Court reversed in a 5-4 opinion, joined by O'Connor).
The case of Riley v. Taylor concerned the exclusion of blacks from jury duty. Riley, an African American, was convicted of murder and sentenced to death by an all-white Delaware jury. The prosecutor had used peremptory strikes to remove African Americans. There had been no blacks on four other juries in the county, which had an 18 percent black population. There had been no African Americans on juries in four other trials in the state that year.
The Third Circuit reversed the conviction on this statistical evidence. Alito dissented and flippantly minimized the evidence of discrimination, comparing it to the happenstance that five of the last six U.S. presidents had been left-handed.
In Ramseur v. Beyer, a case concerning grand jury bias, the judge selecting the grand jury passed over at least two qualified African Americans. Alito wrote that Ramseur lacked standing to raise the issue.
Smith v. Horn addressed issues of a fair trial. Smith was tried for murder. The trial judge neglected to tell the jury it could not convict unless it found Smith had the intent to kill. Alito wrote in dissent that Smith had forfeited the right to raise the issue in federal court because he had not raised it earlier in the state courts: Smith should go to his death.
Horn v. Bronshtein is another procedural case. Earlier, the Supreme Court held that when a jury must determine between life and death, the judge must make it clear that "life means life," meaning that if the jury decides on life rather than death, the convicted killer will never walk free. The trial judge in this case neglected to give this instruction to Bronshtein's jury. Bronshtein appealed to the federal courts for relief. But he had not first gone to the state court for relief within a year, as required by state law. This time Judge Alito ruled for the prisoner: The one-year-deadline was not a bar because it was not consistently applied.
In his 1985 job applications, Alito told Attorney General Meese he was "particularly disturbed" by the Warren Court rulings regarding the Establishment Clause of the First Amendment prohibiting school prayer ("Congress shall make no law respecting the establishment of Religion"). This has been his lodestar ever since.
He voted to protect prayers at school graduation exercises (if the students vote for it), and he agreed with Sen. Cornyn (on a courtesy call) that schools should permit prayer at football games. He upheld the right of evangelical religions to send messages home to parents (distributed to the students by the teachers) urging attendance at after-school prayer sessions.
He has protected the right of municipalities to display religious holiday scenes--the crêche and menorah--as long as they were flanked by Frosty the Snowman and Santa Claus.
He dismissed the suit by a taxpayer to enjoin a similar display for "lack of standing"; the display was entirely donated and the expenditure of township employee time was minimal.
While negative on the Establishment Clause, he is quick to protest interference with "Free Exercise of Religion." Thus, he defended the right of Sunni Muslim police officers in Newark to grow beards, and the right of a Jewish teacher at William Patterson College to be excused from events scheduled on Friday evening. And he ruled against a Pennsylvania hunting license law as applied to a Native American who claimed hunting bears was part of his religion.
On free speech, the Third Circuit held that a prison policy depriving "high-risk" inmates of access to newspapers and magazines (exempting religious and legal material) denied the inmates their "freedom of speech" under the First Amendment. Alito dissented and suggested that if high-risk inmates wanted reading material they could modify their behavior.
Alito struck down a school anti-harassment policy because it interfered with the right of a group of Christians to speak out against homosexuality.
He also struck down a state law banning alcohol advertisements in school newspapers because the ban did not directly advance the asserted interest of reducing underage drinking.
On the other hand, a high school physical education teacher named Phyllis Sanguigni was the president of the Faculty Association. Believing that faculty morale was poor (the principal, she claimed, made false retaliatory accusations of misconduct against teachers who criticized him), she wrote in the faculty newsletter that "staff members are being put under stress" and any teacher who needs help should "feel free to contact an officer of the association."
Shortly thereafter, Sanguigni was given unfavorable ratings and removed from her coaching job, all without notice and hearing. Alito wrote that she was not protected by the guarantee of free speech and press because the faculty newsletter comments did not relate to a "matter of public concern." Nor was she entitled to notice and a hearing as she had no vested, protected interest in the coaching, only the collective bargaining agreement and "past practices."
Think about it: free speech for homophobic harassment and for beer ads in school papers, but not for prisoners or school teachers.
The Rehnquist Court agenda included strengthening the hand of the executive and immunizing the states from federal control. In eight years between 1995 and 2003, the court struck down 33 federal laws on constitutional grounds, a higher annual rate than any court in American history.
Alito would be a happy warrior in this pursuit, if not a leader. He went so far as to rule in United States v. Rybar that Congress lacked the authority to prohibit the possession or transfer of machine guns. The judges in the Third Circuit disagreed, as did the judges in five other federal appellate courts.
Then came his decision that Congress lacked the power under the Family and Medical Leave Act authority to protect the five million state employees who needed time off to tend to family health concerns. The Supreme Court later held to the contrary.
Alito made it harder for citizens to sue against toxic omissions under the Clean Air Act and raised the bar for proving discrimination under the Rehabilitation Act. He especially is at odds with Congress in cases under the Employment Discrimination Act.
In a sex discrimination case, the Third Circuit ruled 12 to 1 that evidence proved an employee had been discharged because she complained of sexual harassment. Alito was the dissenter.
In a race discrimination case, the Third Circuit ruled that the decision not to promote was based on race. Again, Alito was the sole dissenter. Similar disagreements arose in suits filed under the Age Discrimination and Rehabilitation Act with Alito always siding with the employer.
Taxman v. Board of Education of Piscataway is illustrative of his views on affirmative action. The school board had to lay off one of two teachers (one white, one black) in the high school business department. Both started work on the same day and by their evaluations were of "equal qualification." In the interest of racial diversity, the school board decided in favor of the only black teacher in the business department in anyone's memory. The white teacher sued claiming "racial discrimination." Alito voted to sustain her claim. Others reasoned that rather than flipping a coin, Congress would have preferred a decision insuring students an opportunity to learn from a teacher "in the very group" whose historic treatment "motivated Congress to enact Title VII in the first place."
Alito, a former prosecutor, generally sides with the police and law enforcement officials. Two cases, rising under the Fourth Amendment's prohibition of "unreasonable" searches and seizures, tell much about his predisposition.
Baker v. Monroe Township concerned a mother and her three children who set out to dine with an older son, Clement Griffin. As they approached his apartment, they were surprised as police officers ran past with drawn pistols in hand. A drug raid was in progress. The officers pointed guns at the mother and teenage children, handcuffed them, made them lie down, and searched their purses and other belongings. After 20 minutes, they were taken to the kitchen still handcuffed with a gun pointed at Mrs. Baker's head. They were released after 10 minutes.
They sued alleging an "unreasonable" search and seizure and excessive use of force. A majority of the Third Circuit ruled for them. Alito dissented.
Doe v. Groody involved the Fourth Amendment requirement that a search warrant issued by a magistrate must specifically describe the "place to be searched and the persons or things to be seized." Here, the warrant described the premises of John Doe and John Doe himself, giving his description, date of birth and so on. The warrant did not authorize the search of anyone else, although the police had requested authorization to search the residence of John Doe "and all occupants therein."
The officers met John Doe as they approached the house, put him under arrest and entered the house. Inside they found John Doe's wife, Jane, and 10-year-old daughter Mary. A female officer took them to a bathroom, told them to "drop their pants and turn around." Jane and Mary Doe filed suit against the officers, alleging the strip and body cavity search violated their Fourth Amendment rights. A majority of the Third Circuit ruled for them because they were not "specifically described" in the search warrant as required by the Fourth Amendment.
Alito dissented because the words "other occupants of the residence" would have been in the warrant had there been room, and accused the majority of a "technical" and "legalistic" reading of the warrant.
Alito is against abortion, against affirmative action, and for public prayer. In the criminal field, "Stripsearch Sam" belittles the Fourth Amendment and is blind to racial jury exclusion in death cases. He protects homophobia and beer advertisements but denies prisoners the right to read. He would end congressional authority to restrict machine guns and would limit citizen suits in environmental cases. Civil rights are not his concern.
Judge Alito often marches to a drumbeat only he can hear. As a Court of Appeals judge, he is held in check by Supreme Court authority and restrained by contrary views of his colleagues on the Third Court.
Released from these restraints by appointment to the pivotal Sandra Day O'Connor seat on the Supreme Court, the law of the United States may well become whatever Alito says it is.
Watch out America. Veto Alito.