Alito could shape future of Supreme Court

Posted: 11/04/05

Alito could shape future of Supreme Court

By Robert Marus

ABP Washington Bureau

WASHINGTON (ABP)–Presi-dent Bush's nomination of federal appeals judge Samuel Alito to the Supreme Court could shift the court firmly to the right–immediately and for decades to come–on issues such as abortion rights and the relationship between church and state.

If the Senate confirms his nomination, Alito would replace retiring Justice Sandra Day O'Connor, who is the high court's moderate swing vote.

“He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people,” Bush said in comments announcing Alito at the White House.

Alito, in response, said he believes in judicial humility. “Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system,” he said.

Many social conservatives have argued some federal judges have been too willing to go beyond the original intent of the framers of the Constitution by creating rights and attempting to solve social ills with court decisions. Moderates and liberals, on the other hand, have responded that the framers understood a document written in the 18th century would have to be reinterpreted by future generations.

Alito, 55, is a Roman Catholic, a New Jersey native and graduate of Princeton University and Yale Law School. If confirmed, he would join new Chief Justice John Roberts and associate justices Antonin Scalia, Clarence Thomas and Anthony Kennedy to constitute the high court's first-ever Catholic majority.

The remaining justices include two Jews–Ruth Bader Ginsburg and Stephen Breyer–and two Protestants, John Paul Stevens and David Souter.

Alito's addition also would leave Ginsburg as the court's only female member.

In a press release issued a couple of hours after Bush's announcement, the head of Americans United for Separation of Church and State called the pick “deeply troubling.”

In another statement issued just minutes later, the head of the conservative Family Research Council countered that Bush “could not have chosen a more qualified nominee.”

Reaction in the Senate, which is charged with approving or rejecting the nominee, was equally polarized.

Senate Majority Leader Bill Frist (R-Tenn.), in a Capitol press conference introducing the nominee to journalists, called Alito “outstanding” and, like Bush, demanded a swift “up-or-down vote” on him.

But about 30 minutes later, Sen. Charles Schumer (D-N.Y.), one of the most outspoken Democrats on the Senate Judiciary Com-mittee, denoun-ced the nomination as one that would cause significant division.

“When there is a controversial nominee for a pivotal swing vote on the court, the pro-cess should not be short-circuited or rushed,” he told reporters.

Responding to questions, Schumer did not commit to voting against Alito. Nor did he promise that Democrats would try to use a filibuster to scuttle the nomination. However, a Freudian slip in his answer may cast light on the significant misgivings Democrats have about Alito.

“Nothing is on the table and nothing is off the table. Let's learn what we can about Judge Scalia,” Schumer said, mistakenly referencing the current Supreme Court justice who is the target of moderate and liberal criticism, Antonin Scalia. Some pundits have already dubbed Alito as “Scalito” because of his alleged ideologically similarity to the court's most conservative judge.

Alito's judicial record shows he may be inclined to rule similarly to Scalia on abortion cases, but his record on church-state issues may be more nuanced.

He has been a judge on the 3rd U.S. Circuit Court of Appeals, based in Philadelphia, 15 years. He was appointed to that position by President George H.W. Bush. He also served as an attorney in the Reagan administration and generally is considered solidly conservative.

He has participated in thousands of cases that leave a long judicial record, including about 300 opinions he has written.

On abortion, Alito is best known for the 3rd circuit's decision in a landmark 1991 abortion case. In Planned Parenthood v. Casey, he joined the unanimous opinion of a three-judge panel upholding most of a Pennsylvania law imposing several new restrictions on women seeking abortions.

Alito wrote a dissent on part of the decision, however, stating he also would uphold a part of the law that required women to notify their husbands before obtaining an abortion. His colleagues found that portion of the law unconstitutional, as did the Supreme Court later.

Despite some groups' misgivings, Alito's record on church-state issues may be less clear.

Chip Lupu, a church-state expert and law professor at George Washington University, said of Alito, “I don't think this guy is any radical on church-state issues.” However, he added, “I don't think he's going to be an O'Connor clone.”

Lupu and his George Washington colleague, Bob Tuttle, said Alito's rulings seem to indicate he is open to some public displays of religious items, but his rulings have not departed greatly from Supreme Court precedent in that area.

In a 1999 case, ACLU v. Schundler, Alito and his court decided a holiday display erected by Jersey City, N.J., at a municipal building did not violate the First Amendment's ban on government endorsement of religion.

The original display–which contained a Christian nativity scene and a Jewish menorah–initially was held to be unconstitutional by Alito's court.

But when Jersey City added a Christmas tree, other secularized holiday symbols and symbols of the African-American holiday Kwanzaa, a three-judge panel of the same court–including Alito–ruled the display to be constitutional, even if its original form was not.

Earlier this year, the Supreme Court found a Kentucky Ten Commandments display with a similar unconstitutional history violated the constitution, despite later changes.

Tuttle said Alito's decision in the Jersey City case might mean he would have ruled differently on the recent Kentucky case if he had been on the Supreme Court.

However, the professor added, because the court's precedent in the area of public religious displays is “so maddeningly dense and confused,” rulings often vary according to the circumstances of the case.

In other church-state areas, Tuttle and Lupu said, Alito may offer some encouragement for those who believe in a strong reading of the First Amendment's other religion clause–the one guaranteeing the free exercise of religion.

Tuttle pointed to Alito's role in another 3rd Circuit Court decision, Fraternal Order of Police v. City of Newark. In that 1999 decision, the court found city officials had violated the rights of two Muslim police officers who believed they were religiously obliged to wear beards by banning facial hair for police.

Alito, writing the court's opinion, noted the city allowed a medical exemption to the rule, and thus should allow a religious exemption as well.

“I think it's the strongest free-exercise case that any of the federal circuit courts have decided in the last six or seven years,” Tuttle said, noting the decision suggests Alito would be “really stronger than Chief Justice (William) Rehnquist would have been on that same set of facts. Rehnquist and probably Roberts would have been much more deferential to the government on cases like that.”