Alito's 1985 Job Application: A Blueprint for His Troubling Judicial Record
In his 1985 application for the position of Deputy Assistant Attorney General, Samuel Alito pledged allegiance to an extreme legal and judicial philosophy that included disagreement with established Supreme Court precedents concerning reproductive rights, one-person one-vote, religious liberty, and other constitutional and civil rights protections. Since the public release of the statement, Judge Alito and many of his supporters have tried vigorously to distance him from it, suggesting that it should be his 15-year judicial record that Senators consider in reviewing his nomination. In fact, Alito's 1985 statement and his judicial record match each other closely. Alito's statement of his “very strongly” held legal and judicial views provide a blueprint for his structure of judicial opinions in these crucial areas. Both his 1985 blueprint and his corresponding judicial opinions reveal a record that is out of the mainstream concerning federalism and the authority of Congress, reproductive freedom, civil rights and discrimination, religious liberty, and criminal procedure and individual rights, and would threaten the rights of all Americans if Alito is elevated to the Supreme Court.
“Federalism”and Congressional authority
At the very top of Alito's 1985 list of his “very strongly” held beliefs was “limited government” and “federalism.” Several key Alito opinions reflect this view, and contradict decisions by even conservative judges. In U.S. v. Rybar, the Third Circuit considered the constitutionality under the Commerce Clause of Congress' long-standing law restricting the transfer and possession of machine guns. Five other courts of appeal had held the federal law constitutional notwithstanding the Supreme Court's recent Commerce Clause decision in U.S. v Lopez. The Third Circuit majority agreed, but Alito filed a lone dissent, claiming the law was unconstitutional [i]. In another case, Chittister v. Department of Community and Economic Development, Alito held that Congress had no authority to require state employers to pay damages for violating employees' rights to sick leave under the Family and Medical Leave Act [ii], a ruling that was effectively repudiated by the Supreme Court in a later case in which ultra-conservative Chief Justice Rehnquist wrote the Court's decision [iii].
Reproductive Freedom
In his 1985 application, Alito also wrote that he was “particularly proud” of his “contributions in recent cases in which the government has argued … that the Constitution does not protect a right to an abortion.” Recent news stories document that Alito worked on a Supreme Court brief that specifically argued that the Supreme Court should overturn Roe v. Wade. As a judge, when he considered an abortion-related case where previous Supreme Court decisions did not dictate the result, Alito filed a lone dissent that would have seriously undermined women's reproductive rights. In Judge Alito's 1992 dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey, Alito argued that a law requiring a woman in certain circumstances to notify her spouse before seeking an abortion did not pose an undue burden on a woman's right to choose [iv]. Alito asserted that if parental notification requirements were constitutional, as the Supreme Court had previously held, then spousal notification requirements must be permissible as well. Alito's colleagues on the Third Circuit and a 5-4 Supreme Court majority disagreed. Sandra Day O'Connor, writing for that majority, firmly rejected Alito's troubling logic, explaining that “A State may not give to a man the kind of dominion over his wife that parents exercise over their children.” [v]
Civil Rights and Discrimination
In his 1985 application, Alito expressed pride in his contributions, as Assistant Solicitor General, to cases in which “the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed.” In fact, Alito erroneously conflated “quotas” with permissible affirmative action programs and remedies that courts appropriately order in cases of egregious discrimination; the Supreme Court specifically rejected Reagan Administration efforts to restrict such remedies in two cases that Alito participated in [vi]. Later, as a judge, Alito has written several dissents demonstrating a similar disregard for victims of sex and race discrimination. In one case, ten other appeals court judges, Republican and Democratic, agreed that a victim of sex discrimination had enough evidence to at least present her case to a jury; Alito alone disagreed [vii]. In another case involving race discrimination in employment where Alito again tried to prevent a case from even going to a jury, the court majority sharply criticized Alito's dissent, stating that “Title VII would be eviscerated if our analysis were to halt where [Alito's] dissent suggests.” [viii]
Religious Liberty and Church-State Separation
In his 1985 application, Alito specifically highlights his “disagreement with Warren Court decisions” concerning “the Establishment Clause.” These Establishment Clause rulings have become widely accepted as preventing improper and coercive school-sponsored and “captive-audience” prayer in public schools. Nevertheless, Alito joined a dissent in ACLU v. Black Horse Pike Regional Board of Educ. that the majority said would have effectively turned the First Amendment into a “sword that can be used to compel others to join in a religious observance at a state sponsored event” by allowing student-approved prayer at school-sponsored graduation ceremonies [ix]. The Supreme Court, in a 6-3 opinion including Justices O'Connor and Kennedy, reached exactly the opposite conclusion from Alito in a similar case concerning loudspeaker prayer at high school football games [x].
Criminal Procedure and Individual Rights
Alito's 1985 application also expressed his disagreement with Warren Court decisions concerning “criminal procedure.” These include decisions making clear the fundamental Fourth Amendment right to be free from unreasonable search and seizure. As a judge, Alito has been true to his 1985 blueprint. In more than a dozen dissents he has filed on this issue as a judge, “[n]ot one of those dissents urges a position more protective of individual rights than the majority.” [xi] Perhaps the most troubling example is his dissent in Doe v. Groody, where Alito voted to approve the strip search of a mother and her ten-year-old daughter, even though the warrant authorizing the search did not name or refer to either of them [xii]. Even then-Judge Michael Chertoff, now head of the Bush Department of Homeland Security, criticized Alito's position as threatening to turn the Constitution's search warrant requirement into little more than a “rubber stamp.” [xiii]
It is clear that Alito's 1985 application is not an isolated statement that he can now walk away from. Instead, it is a blueprint for his most troubling decisions in key areas that make clear that he cannot be trusted to protect Americans' rights on the Supreme Court.
[i] United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997).
[ii] Chittister v. Department of Community and Economic Development, 226 F.3d 223 (3d Cir. 2000).
[iii] Nevada Dept. of Human Resources v. Hibbs, 538 US 721 (2003).
[iv] Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682 (3d Cir. 1991), aff'd in part, rev'd in part, 505 U.S. 833 (1992).
[v] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) at 898.
[vi] See PFAW, “Samuel Alito: 1985 Application Reveals Right-Wing Ideology”
[vii] Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996), cert. denied, 521 U.S. 1129 (1997).
[viii] Bray v. Marriott Hotels, 100 F.3d 986 (3d Cir. 1997) at 993.
[ix] 84 F.3d 1471, 1481 (3d Cir. 2996).
[x] See Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)
[xi] See Slate (Nov. 1, 2005).
[xii] Doe v. Groody, 361 F.3d 232 (3d Cir. 2004), cert. denied 125 S. Ct. 111 (2004).
[xiii] Id. at 243.