The Record and Legal Philosophy of Samuel Alito: "No One to the Right of Sam Alito on this Court"
Executive Summary
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If confirmed as the next Associate Justice, Judge Samuel A. Alito would bring dramatic, sweeping change to the Supreme Court. While his words are carefully chosen and his demeanor is measured, Judge Alito’s ultraconservative judicial philosophy is nothing short of radical. He would join Justices Clarence Thomas and Antonin Scalia at the center of a radical right-wing bloc that would change the direction of the Court and the country for decades to come, and threaten fundamental rights and legal protections. He stands in sharp contrast to the justice he would replace: Sandra Day O’Connor, a mainstream conservative whose swing vote has helped to preserve hard-won progress on civil rights, reproductive freedom, environmental protections, and a host of other issues preserving equality and justice for every American.
The White House has tried to distance Judge Alito from his lengthy record, which demonstrates he is among the most extreme members of the federal bench. His nomination has been unanimously acclaimed by the leaders of the Radical Right. He has shown a pronounced willingness to impose a narrow right-wing ideology from the bench, and compiled an extraordinary record of dissents to mainstream opinions -- indeed, the largest number of dissents on the Court of Appeals on which he currently sits.
This report analyzes Judge Alito’s public record, drawing a disturbing thread from the legal views he advanced while serving in the Reagan Department of Justice to his fifteen years on the Third Circuit Court of Appeals. It makes a resounding case for rejection of his nomination by the United States Senate in the exercise of its constitutional advice and consent duty.
Increasing Presidential Powers
Throughout his career, Judge Alito has shown a strong predilection to concentrate power in the executive branch and the President, eroding governmental checks and balances and diminishing the rights of private citizens. His record is especially troubling at a time when one party controls all three branches of government and allegations of abuse of power abound -- from warrantless wiretapping of American citizens to the unlawful detention and torture of suspects held by the government at home and overseas.
Eroding Civil Rights
As a government lawyer and a federal judge, Judge Alito has consistently failed to protect civil rights. He has said he disagrees with historic Supreme Court decisions articulating the “one person – one vote” principle. As a judge, he has rarely sided with individuals seeking relief from discrimination on the basis of race, age, gender, or disability, and he has opposed efforts to redress the historic effects of discrimination in the workplace. Indeed, in civil rights cases where the Third Circuit was divided, Alito advocated positions detrimental to civil rights 85 percent of the time. He once argued that it was permissible to seat an all-white jury in a case in which the evidence indicated that prosecutors had rejected black jurors on the basis of race. As part of a 1985 application for promotion in the Justice Department, he highlighted his membership in a reactionary Princeton alumni group that opposed the admission of women and attempts by the university to increase minority enrollment.
Ending Reproductive Freedom
Judge Alito has written that the Constitution does not guarantee a right to an abortion. He is on record opposing Roe v. Wade, and endorsing state laws so burdensome they effectively deprive women of their right to privacy, reproductive freedom, and reproductive health. There is little doubt that as a Supreme Court justice, Alito would vote to overturn Roe.
Favoring the Powerful over the Powerless
More than his colleagues on the Third Circuit, Judge Alito has sided with corporations and government entities accused of discrimination. Several analyses of his record by academics and the news media indicate that he consistently sides with powerful entities against individuals. He once wrote that high government officials should be absolutely immune from liability in cases involving the illegal wiretapping of U.S. citizens. And he endorses broad powers for law enforcement, once writing a dissent that would have upheld the strip search of a ten-year-old girl who was not named in the search warrant.
Curtailing Congress’ Power to Protect Citizens
Judge Alito has voted to strike down Congressional legislation banning the possession and transfer of machine guns, and legislation requiring that states fully comply with obligations to give their workers unpaid medical leave. He once wrote that it is not the role of the federal government to protect the “health, safety and welfare” of the American people. This ultraconservative ideology would undermine an enormous range of laws Americans rely on, including civil rights protections, health and safety standards in the workplace, regulations protecting air and water quality, food and drug quality standards, the regulation of firearms, and even the Social Security, Medicare and Medicaid programs.
Threatening Religious Liberty
Judge Alito’s nomination threatens to erode fundamental constitutional protections that ensure that all Americans continue to enjoy freedom of conscience and religious liberty. Alito has consistently ruled against those who believe that taxpayer funds should not be used to promote religion, and he has reportedly told Senators that the Supreme Court has gone “too far” in maintaining the separation of church and state.
A Growing Credibility Gap
There have been disturbing inconsistencies in Judge Alito’s explanations of controversial issues. He pledged to Congress that he would recuse himself from cases involving certain companies and firms -- including the Vanguard companies, the brokerage firm of Smith Barney, and his sister’s law firm -- then broke that pledge, in one case offering several different excuses. He claims not to remember his membership in the reactionary “Concerned Alumni of Princeton,” although he prominently highlighted that involvement in a 1985 application for a promotion. He reportedly said his statement in that same application “that the Constitution does not protect a right to an abortion” was made to get the job and should not be taken seriously.
Conclusion
Judge Alito’s quiet demeanor cloaks a far right ideology that places him among the most conservative judges on the federal bench. If he replaces Justice O’Connor, he would be a consistent vote to turn back the clock on decades of progress in civil rights, civil liberties, health and safety, environmental protection and religious liberty. His extreme judicial philosophy threatens fundamental rights and legal protections for all Americans -- for decades to come. The Senate should reject his confirmation to a lifetime seat on the Supreme Court.
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