Crib Sheet: Alito the Right-Wing Activist

More machine guns, less family leave, and other views from the new Supreme Court pick.

Thursday November 3, 2005

Supreme Court nominee Samuel Alito has captured the hearts of the right wing. President Bush introduced him to the American people as a man who has "a deep understanding of the proper role of judges in our society [and] that judges are to interpret the laws, not to impose their preferences or priorities on the people." Sen. Bill Frist (R-TN) said on FOX News that Alito has "shown judicial restraint in the past,"and the Heritage Foundation’s Ed Meese noted that this nominee has "shown careful and consistent fidelity to the Constitution and laws as written."

But the right wing’s spin won’t hold up for long. In fact, as many legal experts, including Jeffrey Rosen, have shown, Alito has been a "conservative activist" whose "lack of deference to Congress is unsettling."Alito’s past decisions show that as a Supreme Court justice, he will overstep judicial boundaries to further right-wing ideology, just like Supreme Court Justices Antonin Scalia and Clarence Thomas have done. In fact, Center for American Progress Fellow Robert Gordon, writing in Slate, makes a compelling case that Alito is actually to the rightof Scalia, especially on civil liberties issues. Says Gordon: “Alito sat on a dozen panels in which judges disagreed regarding a citizen’s Fourth Amendment rights. In each of those cases, Alito adopted the view most supportive of the government’s position.” In one case, Gordon noted, “Alito would have upheld the strip searches of an innocent 10-year-old girl.”

ALITO TOOK CONGRESS’S COMMERCE POWER, GAVE PUBLIC MACHINE GUNS: In 1996, Judge Alito was the sole dissenter on the Third Circuit Court of Appeals in U.S. v. Rybar, in which his colleagues upheld Congress’s right to ban fully automatic machine guns. Alito argued that Congress had no power under the Commerce Clause to enact such a law. But he did not stop there. He further demanded that "Congress be required to make findings showing a link between the regulation and its effect on interstate commerce, or that Congress or the president document such a link with empirical evidence."The majority sharply disagreed with Alito: "We know of no authority to support such a demand on Congress"and the requirement would essentially require the federal government to "play Show and Tell with the federal courts." Alito is willing to overstep the separation of powers and actively limit Congress’s interstate commerce power, which is at "the heart of a vast number of civil rights laws, discrimination laws and worker protections."

ALITO STRUCK DOWN FAMILY MEDICAL LEAVE ACT: The Family Medical Leave Act (FMLA) "guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." In the 2000 case Chittister v. Department of Community and Economic Development, Alito used his judicial position to "prevent the federal government from enforcing civil rights protections." Alito held that Congress overstepped its authority under the Fourteenth Amendment and therefore had no power to require employers to comply with the FMLA. But the only one who overstepped his authority was Alito. In 2003, the late Chief Justice William Rehnquist led the majority that overturned Alito’s reasoning. "The Supreme Court decided that even its own path down the road of limiting Congress’s power would not go so far,"said Goodwin Liu, a law professor at the University of California – Berkeley. Had Alito’s ruling stood, anyone with the misfortune to work for a state government could be denied family leave to care for a sick child or spouse.

ALITO WEAKENED EXISTING ANTITRUST AND DISCRIMINATION LAWS: Alito has shown a willingness to push the boundaries of the law for the benefit of corporate interests. In the 2001 case LePage’s v. 3M Corp. Alito sided with the 3M Corp, arguing that its bundling techniques did not violate the Sherman Antitrust Act. Judge Sloviter, the dissenter on the three-person panel, argued that Alito’s decision would "weaken Section 2 of the Sherman Act to the point of impotence," in addition to weakening marketplace competition. (The Third Court eventually heard the case en banc and sided with Sloviter, in a 7-3 decision.) In Bray v. Marriott Hotels (1996), Marriott sought to deny the plaintiff, an African-American woman, the right to present her case of racial discrimination. Alito sided with Marriott, while the majority siding with Bray criticized Alito for overstepping his judicial role and "acting as a factfinder [and] taking it upon himself to interpret the meaning of the deposition testimony of one of the defendants." "Title VII would be eviscerated if our analysis were to halt where the dissent suggests,"wrote the majority. Alito’s willingness to change legislation at all levels of government show "that there’s a real chance that he will, like Justice Scalia, choose to make law rather than interpret law," said Sen. Charles Schumer (D-NY).

Overall, as Mark Tushnet argues in The American Prospect:

[L]ooking at Judge Alito’s record, it’s hard to find anything a conservative would disagree with. He interprets the free-exercise clause expansively because it protects the rights of religious dissidents, which is the self-characterization of many religious conservatives in what they see as a secular society. He interprets the establishment clause restrictively because it keeps religious conservatives from enacting their preferred agenda when they happen to control a school board or city council. And he obviously disagrees with Roe v. Wade, having voted to uphold the one provision of the Pennsylvania abortion statute that the Supreme Court struck down in the Planned Parenthood v. Casey decision of 1992.

Sounds pretty conservative to us.