Alito’s Judicial Record a Portrait of Conservatism and Consistency

Times Staff Writer

Although he is mild-mannered and self-effacing, Samuel A. Alito Jr. has compiled such a clear track record in 15 years on the federal appeals court that his nomination Monday to the Supreme Court sparked immediate reactions -- from both fans and critics -- that his presence on the high court would move it to the right.

Alito has written strongly conservative decisions on reproductive rights, the role of religion in public life, federalism, defendants’ rights and the environment.

Those rulings have made him a darling of conservatives and precipitated an outcry from civil rights and women’s organizations urging that his nomination be blocked.

By nominating Alito, President Bush fulfilled his promise to nominate “justices in the mold” of justices Antonin Scalia and Clarence Thomas, said an enthusiastic Jay Sekulow, president of the American Center for Law and Justice, a group affiliated with evangelist Pat Robertson.


A broad array of liberal groups, including the Alliance for Justice and Planned Parenthood, immediately called on the Senate to reject Alito, who has written hundreds of judicial opinions.

Although Alito’s opinions in abortion cases drew the most comment Monday, he also voted to invalidate a federal prohibition of machine gun possession and voted to strike down part of the federal Family and Medical Leave Act. In addition, he issued dissents that would make it more difficult for plaintiffs to prove claims of sex and race discrimination.

Alito is “very far to the right,” said Duke University constitutional law professor Erwin Chemerinsky, a staunch liberal. He predicted that if Alito was confirmed he “would be a vote to radically change the law in many key areas.”

John C. Eastman, a conservative constitutional law professor at Chapman University in Orange, sharply disagreed. He said that Alito’s rulings on the U.S. 3rd Circuit Court of Appeals “demonstrate a profound understanding of the limited role of the judiciary” and a respect for precedent.


A number of legal scholars, including liberals and conservatives, all agreed that Alito is considerably more conservative than Justice Sandra Day O’Connor, whom he would succeed.

Among Alito’s most noteworthy opinions:

* In 1996, he dissented in U.S. vs. Rybar, a case challenging Congress’ power to prohibit the possession or transfer of machine guns. The majority ruled that “the regulation of machine gun transfer and possession comes within Congress’ power to legislate under the commerce clause.” Alito retorted that a 1995 Supreme Court decision striking down an act of Congress based on the commerce clause meant that the appeals court had to invalidate the machine gun law.

* In 1997, in Bray vs. Marriott Hotels, Alito found that a plaintiff had not shown enough evidence to be entitled to a trial on her claim that her employer had denied her a promotion because of racial bias. But the majority disagreed, saying that if Alito’s approach were followed, Title VII of the civil rights act “would be eviscerated.”


* In 1999, in American Civil Liberties Union vs. Schundler, Alito wrote for the majority in a case that upheld a modified holiday display at City Hall in Jersey City, N.J., which had been challenged on the grounds that it amounted to government promotion of religion. Originally, the display had contained only a menorah and a creche. Subsequently, secular symbols including Frosty the Snowman, Santa Claus and Kwanzaa symbols were added to the display. Alito said that made it acceptable, citing prior Supreme Court decisions that government displays of a menorah or a creche were not automatically unconstitutional. “It is hard to accept the proposition that the establishment clause is violated when these two symbols are displayed together as part of a holiday display that includes secular symbols and is dedicated to the celebration of a municipality’s cultural diversity.”

* In 2003, Alito dissented in a case stemming from a drug raid in Pennsylvania in which a 10-year-old girl and her mother were strip searched. They filed a lawsuit against police officers, contending that their rights were violated. The officers claimed that they were entitled to qualified immunity, and a federal district court judge agreed.

The plaintiffs appealed, and the 3rd Circuit reversed in a decision written by then-Judge Michael Chertoff, who now heads the Department of Homeland Security. Chertoff said that if Alito’s view had prevailed, it would have seriously damaged individual rights guaranteed by the 4th Amendment.

* In 2004, Alito wrote the majority opinion rejecting a claim by an inmate on Pennsylvania’s death row that his lawyer had done a poor job. Alito ruled that the failure of the inmate’s attorneys to obtain school records and other mitigating information at the sentencing hearing did not constitute ineffective assistance of counsel. Last year, the Supreme Court reversed the decision in a 5-4 ruling written by Justice David H. Souter, who concluded that the defense lawyer’s performance fell well below constitutional standards and had harmed the inmate’s case.


Not all of Alito’s rulings have been in a conservative vein. In 1999, in Fraternal Order of Police vs. Newark, he ruled in favor of a group of devout Sunni Muslim police officers whose department prohibited male officers from wearing beards. In a unanimous decision, written by Alito, the 3rd Circuit barred Newark’s policy on the grounds that it violated the Constitution’s free exercise of religion clause.

Several attorneys who have appeared in front of Alito, even those who lost their cases, praised his intellect and integrity. Among them were Ronald K. Chen, a constitutional law professor at Rutgers Law School in Newark, who represented the ACLU in the Schundler case.

“I disagreed with his decision,” Chen said. “Probably, Sam and I disagree on a number of constitutional issues. That does not mean I don’t have the greatest respect for his intellect, integrity and ability. I am very pleased by the nomination.”

David Kairys, a constitutional law professor at Temple University in Philadelphia, agreed that Alito is “very bright and qualified on all the standard grounds,” but expressed firm opposition to the nomination, saying he was very troubled by many Alito rulings.


Among others, he cited the 2003 ruling on the strip search of the 10-year-old girl. He predicted that if Alito was confirmed, “this is the kind of individual right that would be rolled back.”

Newark attorney Lawrence S. Lustberg, who said he had known Alito for 24 years and greatly admired his intellect and integrity, offered a more measured view. He said Alito would move the court to the right, but in a different way from Scalia.

“Scalia expresses his conservatism in sweeping, broad pronouncements,” said Lustberg, who specializes in civil rights and criminal defense work.

“Alito is much more incremental in his approach, more like [late Chief Justice William H.] Rehnquist. He will plant a phrase here and there and slowly and gradually move the law to where he wants it to be. The process is more subtle and tactical than what Scalia does,” Lustberg said.