Tuesday, September 15, 2009

Through The Legal Looking Glass--The Nine Gray Eminences

Associate Justice Samuel Anthony Alito was born on April 1 (no jokes, please), 1950 in Trenton New Jersey. Shortly thereafter, his family moved to nearby Hamilton Township. He comes from a middle class Italian-American family. His father was a high school teacher who later moved on to become the first Director of the New Jersey Office of Legislative Services. His mother retired as a school teacher.

He graduated from Steinert High School in Hamilton, and went on to nearby Princeton University, obtaining a bachelor of arts degree in public and international affairs from the university's Woodrow Wilson School. He is Roman Catholic. While at Princeton, he became active in school affairs. In 1971, he led a student conference called The Boundaries of Privacy in American Society. He was conservative in most political matters, but definitely exhibited some strong libertarian tendencies. The conference concluded that domestic intelligence-gathering should be more carefully scrutinized, called for the decriminalization of sodomy, and came down heavily on the side of eliminating discrimination in hiring for gays.

He also was sufficiently low on the draft lottery numbers that he decided to sign up for the Army ROTC program. After graduating from Princeton, he joined with the Concerned Alumni of Princeton in expressing opposition to the Yale administration's promotion of affirmative action as well as its attempts to remove the ROTC program from the school's premises. He never became a formal member of the group, which later was accused of moving beyond affirmative action and drifting into anti-black rhetoric. Alito said publicly that his early agreement was based on his opposition to the Yale policy, but that he abhorred racism in any form. During his senior year, he completed his Princeton degree studying in Italy, where he wrote his thesis on the Italian legal system. He became so enamored of the law, and how American jurisprudence differed from almost any other system, that he decided to go on to law school.

He attended Yale Law School, and served as the editor of the Yale Law Journal, earning his J.D. in 1975. Before starting law school, he was commissioned as a Second Lieutenant in the Army Signal Corps, and served active duty in 1975 while getting his training at Fort Gordon, Georgia. Thereafter, he served in the inactive Reserves, where he rose to the rank of captain before receiving his honorable discharge in 1980.

Upon graduation from Yale Law, Alito clerked for a judge on the Third Circuit Court of Appeals. He had applied for the opening in Supreme Court Justice Byron White's office, but White was a big football fan, and former player, and Alito was not. That appointment fell through. After his clerkship, he served as an Assistant U. S. Attorney for New Jersey, and specialized in prosecuting cases involving drug trafficking and organized crime. He became the resident expert on RICO (the Racketeering Influenced and Corrupt Organizations Act). Moving over to the civil side, he served from 1981 to 1985 as Assistant U. S. Solicitor General.

He then became a Deputy Assistant to Attorney General Edwin Meese. He started demonstrating his judicial philosophy on his application for that job. He supported conservative views, and cited William F. Buckley, Alexander Bickel and Barry Goldwater as major influences. He also expressed strong reservations about the Warren Court's activism and disregard for precedent, particularly in First Amendment cases relating to the Establishment Clause. This led to his nomination by the first President Bush to be a judge of the United States Court of Appeals for the Third Circuit. He was rated well-qualified by the American Bar Association, which blunted some of the attacks on him coming from the liberal side which had earlier done such damage to Judge Bork's nomination to the Supreme Court.

In 1985, Alito married Martha-Ann Bomgardner, a law librarian who met Alito during one of his many trips to the law library while he was a clerk. They have two children, Philip and Laura. Until his Supreme Court appointment, the family resided in West Caldwell, New Jersey. He took a position as an adjunct professor at Seton Hall University School of Law, and remained there from 1994 to 2004. He taught constitutional law and an honors class in civil liberties and terrorism. He is a long-time member of the Federalist Society, a group of conservative/libertarian lawyers and legal professionals.

Associate Justice Sandra Day O'Connor announced her intention to resign in 2005, as soon as the President decided on a replacement. The second President Bush first nominated John Roberts to the vacancy. However, before the formal vetting process had gained much ground, Chief Justice William Rehnquist died, and Bush withdrew the nomination, intending to name Roberts to the position of Chief Justice. Bush then made a major mistake in appointing a Bush insider, Harriet Miers to the position instead of Alito. The conservatives and federalists in the Republican Party came unglued, and savaged Miers over her cronyism and Washington cocktail circuit credentials. Miers withdrew from the nomination on October 27, 2005. On October 31, Bush then nominated Alito, having successfully gotten Roberts into the Chief Justice position earlier.

The liberal-left came out against the nomination in full attack mode. The ACLU formally opposed his nomination, only the third time it had done so. The last open opposition was their rabid attack on Judge Bork. Completely ignoring all of Alito's work both as a teacher and as an appellate judge in regard to civil liberties in times of national emergencies, the ACLU honed in on Alito's conservatism as indicating that "Our President has claimed unprecedented authority to spy on Americans and jail terrorism suspects indefinitely . . . and America needs a Supreme Court Justice who will uphold our precious civil liberties." The left was determined to exercise every effort to undermine the Iraq war, so it distorted the truth about the President's actions, and completely misstated or misunderstood Alito's very cautious views on the dangers to civil liberties in wartime. But licking its wounds from past attacks for its partisanship, the American Bar Association again rated Alito well-qualified.

Botoxed sleepwalker and reporting-for-duty failed Presidential candidate John Kerry, exercising his usual organizational skills and great charisma, attempted to put a filibuster of the nomination together. As with pretty much everything else he has ever done (except marrying the pickle princess and getting re-elected in Massachusetts), he failed. Ted Kennedy tried to paint Alito as another Bork, trying to force women to have their abortions in back alleys and sending troops into people's homes to drag them off to prison camps in the middle of the night. In the end, Alito was confirmed by a vote of 58 to 42 in the Senate, second only in sitting justices to Justice Thomas for narrow victories (Thomas received a 52 to 48 vote as a result of the Anita Hill ambush).

Justice Alito is a very learned and deliberative judge. For those who do not follow decisions closely, and rely on summaries in the newspapers, I assure you that he is a conservative protector of the Constitution who has no hesitation at making it clear that when he disagrees with the other conservatives on the court, he does so both on strong constitutional ground and to protect individual liberties. However, those disagreements are rare. For that reason, some people have thought of Alito as being weak on abortion. He is not. In the case of the federal partial-birth abortion statute before the court, he voted with the majority to sustain the Congressional action, but indicated his reluctance for the issue to become the rule for the states. Because he disagreed with the majority contention directly addressing Roe v. Wade, he wrote a concurring opinion with Justice Scalia stating that the reversal of Roe v. Wade was not the issue in the case, and therefore had to wait for a proper case to come before the court. He was voting for the precedent represented by the case before the court, and not voting either for against Roe. Alito has indicated a willingness to overturn Roe in a proper case at the proper time with the proper pleadings. That is a very conservative judicial point of view.

As for free speech, again Alito seems liberal, but he is not. He upholds precedent on solid traditional grounds. He sees the First Amendment as being limited only by extreme circumstances, and never in advance. He voted with Roberts' majority opinion in Morse v. Frederick that speech in public secondary schools which promoted drug use can be properly banned both on the grounds of the power of the school to act in loco parentis, and the exigency of dangerous drug use among youngsters being promoted in a public institution. But he also stated his view that the moment the discussion became political, it was protected speech and could not be banned. Thus, at least in a public school below college level, saying "use drugs" can be forbidden. But arguing that medical marijuana should be legalized cannot.

In order to see that his views are conservative and traditional, but cautiously worded and predictable, it should be noted that he has voted with the conservative majority 87% of the time, but has joined in conservative majority opinions less than 75% of the time. For those unfamiliar with the way Supreme Court decisions are calculated, the final vote determines the outcome. But a justice voting with the majority can simply join, without any further expansion on his personal views of the law of the case. He can concur in part and dissent in part, thus standing with the majority on the result, but arguing that portions of the decision don't address important issues properly. Or he can write an entirely separate concurrence, essentially saying he agrees with the result the majority has reached, but not the reasoning the majority used to reach that result.

Alito has been consistent and predictable. He will continue to stand by the Constitution, read it in its strictest terms, and overturn precedent only when the specifics of the case call for it. He seems to be looking for the opportunity to overturn Roe v. Wade, but will not detour into the dangerous territory of ruling on issues that are not before the court. If and when the opportunity presents itself, and should the long-awaited reversal of Roe occur, Alito will be there writing an opinion that stresses federalism, enhances the power of the states, uncreates an artificially created right, and is so well-reasoned (unlike Roe itself), that the precedent will stay in place for decades to come.

10 comments:

AndrewPrice said...

Thanks for the analysis Lawhawk. I know that Alito is a fairly conservative justice, but he remains a bit of an enigma to me. Do you think he will remain to the right, or do you think that he is a good candidate for a leftward drift?

LawHawkSF said...

Andrew: I've been wrong before, but I don't see the likelihood of a leftward drift. He doesn't seem to be "growing in office," which is liberalspeak for tossing out the Constitution. When he's being a maverick, it's almost always for upholding the rule of law and tough enforcement of First Amendment rights. It's his libertarian streak (which I share) that makes him occasionally appear liberal on social issues.

Thus, even though he supported equal rights in the public forum for gays, I'm willing to bet that he'll stick to the rule of law if and when the California Prop 8 issue appeal makes it to the Supreme Court. He'll look for adequate independent state grounds for upholding the people's vote, and find that marriage is a traditional matter to be left to the states. He sees the old anti-miscegenation marriage laws as a violation of the Constitution and simple morals, but would see gay marriage as a political issue with no federal constitutional ramifications, best left to the states (he's a federalist, remember). I think that would be the test which would answer your question definitively.

CalFederalist said...

Lawhawk--I voted for Prop 8 and support gay rights, which I guess is where Alito is coming from. Marriage is a creation of the state, and not a Constitutional right. So as long as it's valid under California's constitution, the feds should not make it a federal constitutional issue. Alito is unlikely to go all airy-fairy like O'Connor and start talking about "defining our own place in the cosmos." I think you're right. He'll uphold California's right to define marriage in its own way.

HamiltonsGhost said...

LawhawkSF-The Founding Fathers never considered marriage to be a matter for the national government to address. When state anti-miscegenation laws kept the races from mixing, the court properly found that it violated specific provisions of the amended Constitution. Sexual orientation was not addressed at the beginning in the document, nor by any subsequent amendment. So marriage remains with the states. Alito would support all the free speech there is for people to advocate gay marriage, but he won't support its imposition by the federal Supreme Court.

AndrewPrice said...

Lawhawk, I can see that. Though I've always thought of Alito more as a friend of Big Business than libertarian causes -- though, as I said, he remains an enigma to me. I hope he's libertarian in nature.

LawHawkSF said...

Andrew: You are right that he has been the most consistent justice on matters of corporate law. He also supported the U. S. Chamber of Commerce in thirteen out of fourteen cases during his tenure. He has also voted to restrict punitive damages in corporate cases where actual malice wasn't proven, and to limit derivative suits. I don't entirely agree with his philosophy on some of those, but I can't find any legal or constitutional flaws in his reasoning. I do like his rulings on tightening the rules on bias suits and easing regulations on corporate activity. But there is no question that he does favor big business (and you and I prefer small and medium size businesses over large, faceless corporations).

Writer X said...

I think Justice Alito would make a great poker player. His face is so unreadable. Like Thomas, though, I've always admired Alito's humble beginnings and appreciation of the constitution.

Thanks, LawHawk. It's always so interesting to get this extra perspective from you on the justices.

LawHawkSF said...

WriterX: Ya know, I never actually thought of that. You're right. He'd make a great poker player.

That's seven justices down, two to go. I'm not going to cover Sotomayor yet for two reasons. First, it's too early. And second, I find it nearly impossible to stop frothing at the mouth when her name comes up. I need to get my perspective back. Next, Scalia. And finally, Chief Justice Roberts. I'm glad you're enjoying the series.

StanH said...

Lawhawk I like Justice Alito the most so far in your essays. He seems to have original intent as his guiding principle, and by extension, does not see The Constitution as a living document, yuk. I like that he was affiliated with the Federalist Society this is another indication of his faith in America and her laws.

A question Lawhawk or Andrew! Speaking of RICO, I read earlier today that four acts of criminality in a single organization can trigger RICO. Is that true, and with the four or five videos those kids have done undercover on ACORN, will there be a prosecution of ACORN?

AndrewPrice said...

Stan, I haven't dealt with RICO in a while, but last I knew it was 2 acts. But they have to be what are called "predicate acts" -- meaning they have to be of the type listed in the statute. These are usually racketeer type stuff, but they do include mail fraud.

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