The Basic Case Against Alito

Robert Gordon

I have nothing very novel or surprising to say about the Alito nomination. But on the eve of his hearings it may be useful to summarize the essential case against him.

When Samuel Alito applied for a political job in the Justice Department in 1985, he wrote that he had been inspired to go into law by disagreement with the "activist" decisions of the Supreme Court under Earl Warren and other liberal policies. He mentioned particularly decisions in the areas of "criminal procedure, the Establishment Clause, and reapportionment." He said he believes strongly in "limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values." He added: "I am particularly proud of my contributions in recent cases [in the Solicitor General's office under Reagan] in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion." He advertised his membership in a group of Princeton alumni who objected to opening up Princeton to women and minorities.

Now Alito is saying that the job memo doesn't tell us anything about how he would act as a judge because he wrote it as an "advocate" --- an advocate for himself, apparently -- applying for a political job in a conservative administration. He says his briefs and arguments and legal opinions for the Justice Department are also irrelevant because he was just acting as an advocate for the executive branch. He says that even his deeply held personal views on abortion and civil rights are irrelevant because he will be acting as a judge, not a person. (He also says he can't remember belonging to the Princeton alumni group, which I find rather hard to believe, since he was proud enough of it to put it on his job application.)

It's disturbing in itself that Alito, like John Roberts before him, will not take responsibility for or own up to his own beliefs. He's always claiming, "That was somebody else back then" - but without saying how or whether he has changed, except that he is now a judge. The argument that he was just saying whatever it was convenient for him to say in order to get a job doesn't sound too good coming from somebody who is now trying to get another job. There is something really slippery, or at least less than forthright, about his approach to his own record of actions and opinions.

Anyway, nobody can seriously suppose that Alito's beliefs will have no effect on his decisions, because they already have. His manifesto of 1985 is a pretty reliable road map not only to his work for the Reagan Justice Department, but to his decisions as an appellate court judge.

Backers of Bush's judicial nominees like to argue that, having won the election, Bush is entitled to put conservatives on the bench; but that, not to worry, his nominees will decide cases fairly and impartially. But is Alito likely to be the kind of judge who so completely subdues his convictions to his role that nobody looking at his record - as John Roberts claimed was true of his old boss, Henry Friendly - could tell if he were liberal or conservative? Or the kind of "conservative" judge in the mold of Frankfurter or the younger Harlan, who treads cautiously, defers to legislatures, sticks close to precedents, and construes statutes narrowly to avoid Constitutional questions? Or a judge like Powell or O'Connor, who approaches every case as unique and different, and decides on nuances of particular fact? Or even a judge whose views may generally accord with his party's, and who tilts towards the results his political sponsors prefer in close cases, but who does not actively seek to stretch or bend the law to pursue an ideological agenda? If Alito were any of these, I doubt there would be much opposition to him. I also doubt whether Bush would have wanted to appoint him.

By all indications Alito is none of these. He is not "conservative" in any plausible sense of the word except in style. Unlike Scalia, with whom he is often compared, he is not given to announcing flamboyant declarations of principle or sweeping legislative-like rules, or lobbing rhetorical stink-bombs at his fellow judges. By all accounts he is a low-key, pleasant man who respects disagreement and does not insult his colleagues on the bench. He is a cautious craftsman who takes small discrete steps towards his objectives rather than daring leaps. Where the law is hard and clear, he does not defy it or try to amend it judicially - though of course as a Supreme Court justice he will have scope to modify even well-settled law.

But wherever there is running room - opened up by gaps in application, conflicts in precedents, ambiguities in statutes - Alito is an activist who works steadily to push the law well beyond conventional boundaries of precedent. There is nothing "restrained" about his opinions proposing to strike down one federal law banning machine guns for exceeding Congress's power under the Commerce Clause (U.S. v. Rybar, 1996); to strike down another mandating employers to grant medical leave to parents of newborn children for exceeding Congress's power under the Fourteenth Amendment (Chittister, 2000); and to construe regulatory and civil rights laws so restrictively as to frustrate their purposes. He is for "limited government" and "federalism" when those principles point to less regulation of business and religious expression; but for authoritarian government when it acts in the causes of protecting national security or law enforcement and regulating morals. He is in short a judge with an agenda, and the agenda is not "conservative" but right-wing-Republican.

Now of course the liberal lions of the Warren Court - Warren, Brennan, Black, Douglas, Goldberg, Fortas, Marshall -- were judges with an agenda too. Their agenda was to push the polity toward treating subordinated, excluded and marginalized people with dignity and as civic equals. In this cause they construed the Constitution as a charter of equal rights and due process protections for the vulnerable; which limited the state's freedom to abuse and discriminate against those subject to its authority, but licensed a large governmental role in regulating the economy, expanding social security and health care, and promoting civil rights. Their agenda, and that of the liberal Congresses of the 1960s and 70s that wrote the legislation to make it effective, is of course what provoked the revolt of the conservatives and inspired the young Samuel Alito to join it. Alito and his comrades went into law to dismantle the achievements of the New Deal, Warren Court and Great Society, the social policies and civil rights protections and both the restrictions on and expansion of government authority of the liberal state. Some of us may regard this as a rather pinched and negative set of ideals, but to them it was a noble crusade.

So now they are in power, why shouldn't it be their turn? Why - as exasperated conservatives like Bruce Fein keep asking -- do their nominees have to conceal their activism, pretend that they are "mainstream" judges, really hardly distinguishable from liberals? Why does Bush pick stealth candidates like Roberts and Alito, rather than open and forthright radicals like Michael Luttig of the 4th Circuit or Edith Jones of the 5th Circuit or Janice Rogers Brown of the D.C. Circuit? The obvious reason is that large parts of the conservative agenda are quite unpopular, and candidates who openly avowed it would risk being voted down. Polls say that around 70 per cent of the public does not want Roe v. Wade, the decision conferring a constitutional right to abortion, overruled. So a pro-life nominee has to send signals to backers on the cultural right that he is a reliable vote on the abortion issue while at the same time reassuring liberal pro-choice Senators that he has not made up his mind. And the backers who have picked him because they think he's a vote for their side on the abortion issue have to pretend along with him that they think he has an open mind, even though they would never have pushed for and supported his nomination if they actually believed he had an open mind. (Harriet Miers really did seem to have an open mind on issues like gay rights, and look where that got her!) Alito has made this straddle very difficult by previous statements that he thought the Constitution did not protect the right to an abortion; by recommending litigation strategies in the Justice Department for getting Roe dismantled stage-by-stage and ultimately overruled; and finally, by writing a dissent as a judge on the 3d Circuit in an abortion case that would have allowed a state to restrict abortion rights by requiring a woman to notify her husband first - an issue that, on appeal, the Supreme Court decided the other way, 6 to 3.

In short, the Bush people's strategy with judicial nominees is the same as their strategy with the other legacies of the liberal state. As the fiasco of his proposals to revise Social Security made clear, Bush cannot get the legislative votes to repeal the New Deal and Great Society social safety nets, or legislative protections of labor, work safety and the environment and regulation of corporate frauds and torts. As protests mount over torture, indefinite detentions, spying without warrants, and the Patriot Act, he cannot count on Congress to ratify his claims of unlimited executive power in wartime. But he can appoint people in the executive and judicial branches who will work toward these aims covertly, gradually, and under the radar, while feigning otherwise.

In two broad areas especially, Alito promises to be a dangerous servant of the agenda.

Executive Power

1. The first and most important is executive power. As Dahlia Lithwick and Sandy Levinson have astutely pointed out, there's reason to think that Alito's views on executive power are the main reasons Bush wants him on the Court. Alito has not decided any cases squarely on point. But everything in his background and record suggests he is likely to be extremely deferential to executive power and reluctant to assert a strong judicial role in checking it.

In the Justice Department, he was a consistent supporter of executive power. In one (by now well-known) opinion he argued that the Attorney General should be immune from civil suits for authorizing warrantless domestic wiretaps (though with characteristic caution he advised against litigating the issue to the Supreme Court). He proposed that the President regularly attach "signing statements" to the bills he signs suggesting how he thinks legislation should be construed. Bush most recently used a signing statement to indicate that he construes the McCain law prohibiting torture not to limit his discretion to ignore it.

Almost every time law enforcement clashed with individual rights to due process, Alito supported law enforcement. He gave an opinion that there was no constitutional issue raised when a police officer shot and killed a 15 year old boy who ran away from the police after having stolen only $10: Alito said, the officer didn't know that, and it might have been a more serious felony. (The Supreme Court disagreed, in a 6-3 opinion by Justice White, who said, "It is not better that all felony suspects die than that they escape….A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.") He consistently pressed for interpreting law enforcement authority broadly, finding loopholes and wiggle room in statutes and court cases that construed it narrowly. He wrote another opinion approving the FBI's plan to compile fingerprint information of refugees living in Canada, on the ground that illegal aliens and foreigners living outside their countries are not entitled to any of the constitutional rights of Americans - notwithstanding the fact that the Constitution's due process clause protects "persons", not "citizens."

As a U.S. Attorney in 1989, Alito expressed strong approval for the theory of the "unitary executive" - the view that the President is the sole boss of the executive branch, and that attempts to make him share power with other branches such as Congress or the courts violate the "separation of powers." This doctrine would - as its strong proponents in the Federalist Society admit - make all the so-called "independent" agencies such as the FCC and the SEC and the Federal reserve unconstitutional, because the statutes creating them limit the President's authority to remove their heads. The theory similarly supports the incredible claims that Bush's lawyers are now making, that when the President is carrying out a specifically executive function, such as that of commander in chief, no other branch may limit his authority. Congress has of course never accepted this claim, and the Supreme Court hasn't either, despite a few cases partially supporting it. The accepted, conventional - and from a historical point of view manifestly correct - doctrine is that in even in national security and foreign-policy affairs, the Constitution contemplates a system of shared, overlapping power and mutually checking powers.

Well that was the Justice Department, where arguably it was Alito's job to uphold and expand executive authority. But as a judge he is not noticeably any different. With a few exceptions, he virtually always supports law enforcement - police, prison authorities, prosecutors, immigration authorities. Even when they violate their own rules, as when the cops strip-search persons not described in their warrant requests, he says the violations are technical, minor, no big deal. (See Doe v. Groody, 2004). Other federal judges have been very critical of the Board of Immigration Appeals for its harsh, sloppy, negligent dismissal of even deserving claims of asylum; but Alito, even when he thinks immigrants have strong claims on the merits, routinely sustains the Board's decisions. Alito dissented when the majority on his court reversed the conviction of a black man because the prosecutors in that county used peremptory challenges to keep blacks off the jury - which is illegal, if done to exclude a particular race or ethnic group. The majority noted that in a county that was 18% black, blacks were constantly being struck from juries. Alito said, that could be just a coincidence - you wouldn't infer some sinister design if a jury pool was mostly left-handed. Quite right - but that's because there's no history of discrimination against left-handers, whereas the practice of using peremptory challenges and other devices to keep blacks off juries is older than Jim Crow and a continuing problem. (Riley v. Taylor, 2001.)

This pattern is especially alarming because if he gets on the Supreme Court, Alito will be taking part in momentous decisions regarding the scope of executive authority in national security matters - cases like those involving "enemy combatants" and detainees and surveillance in what's called the war against terror. The executive branch under Bush, as under Nixon, has claimed an extraordinary authority for the President in wartime - that on his own authority, he can have picked up off the street and detained indefinitely, with no access to a lawyer or the courts or the writ of habeas corpus, anyone he suspects may be aiding terrorists, however indirectly, whether citizen or alien; that he may subject anyone he (or a shift supervisor at the National Security Agency) thinks may have some connection to a foreign threat to surveillance without a court order; and that in his capacity of commander-in-chief he may not be restrained by domestic law, Congressional action, prior court precedents, or international law in his conduct of the "war on terror", which is likely to last forever. He claims emergency powers for a perpetual emergency. In short the doctrine is that the president is a law unto himself, or rather operates in a law-free zone, and is the sole judge of his own jurisdiction and the actions taken within it. This doctrine is the old doctrine of royal absolutism, which was developed by Nazi jurists like Carl Schmitt into a doctrine of executive emergency powers - the doctrine that the executive protecting the nation's security is outside the law. The Supreme Court as it was last year, with Rehnquist and O'Connor still on it, had a majority that clearly disapproved of this doctrine. Even Justice Scalia believes that the President may not detain citizens indefinitely without charging them unless Congress has acted to suspend habeas corpus. Would a Court with Roberts and Alito taking their places do the same?

The Senators have got to ask Alito what he thinks the limits of this doctrine of executive emergency powers are, if any; and what those limits are. He cannot be allowed to evade the question by saying that the issues must be decided case by case. The claim that Bush and his lawyers like John Yoo make for executive power is a categorical one that the President may disregard even specific statutes limiting or regulating his authority. They have invited a general debate on the issue, and the Alito hearings are an ideally appropriate vehicle to conduct that debate.

2. Protections of the Vulnerable

I've mentioned that the legal agenda of the conservative movement, articulated by young conservative lawyers like Alito in the Reagan Administration, was to roll back the Rights Revolution and New Social Regulation of the 1960s and 70s. The justices they appointed made some headway on this agenda, but have been thwarted by their more liberal colleagues and the Congress. Alito, it seems clear, is still pursuing this agenda.

The clearest example is civil rights enforcement. Alito is regularly hostile to claims of discrimination on the basis of race, sex, age or disability. Indeed, as mentioned earlier, for all his respect for legislatures, he's even hostile to Congress when it tries to do something about discrimination. Congress passed the Family Medical Leave Act in 1993, requiring employers to rehire employees who take leave to have children. Congress found that without such policies, many employers would not take back many employees, and that this was a civil rights issue because the burden of child care falls disproportionately on women, who are therefore most likely to lose their jobs and have their employment opportunities truncated. Alito voted to invalidate parts of the Family Medical Leave Act (abrogating sovereign immunity for states that violated the law) on the ground that Congress had not put forward enough evidence that employer leave policies intentionally disfavored women. This is a very narrow view of what it means to discriminate. How much evidence would you need that the burden of firing workers who take leave to take care of children falls disproportionately on women? The Supreme Court decided this case the other way, with Rehnquist writing the opinion, reasoning that Congress had plenty of reason to think that Congress could reasonably have found that "mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees." (Nevada Dept. of Human Resources v. Hibbs, 2003).

Like most of the judges Bush has appointed to the federal courts, Alito is generally unfriendly to employees who sue employers for discrimination. I should say there are exceptions - he sometimes rules in favor of plaintiffs in such cases - but the general pattern is one of hostility. Again, Alito doesn't make sweeping pronouncements - that's not his style. He simply increases the burden of proof on employees to prove discrimination and makes it relatively easy for employers to prove they did not discriminate. Generally he favors having courts dismiss such complaints without allowing them to get to juries.

One example will illustrate his technique. Barbara Sheridan worked for the Hotel DuPont. She had been regularly promoted. When she complained of sexual harassment, she was demoted to a non-supervisory position. The precedents in this area of law hold that if an employee claims discrimination, the employer has to come forward with an innocent explanation for firing or not promoting or demoting an employee. In this case the hotel said her performance was deficient. Sheridan showed these explanations were false. The cases then say that if the employer's reasons for its actions seem to be pretexts, then the plaintiff gets to a jury to decide if there is discrimination. Judge Alito was the lone dissenter, in a 10-1 ruling for the plaintiff. Alito wanted a rule that once the employer produces a legitimate reason, whether based on a pretext or not, the employee would be back at Square 1, and have to produce further specific proof of discrimination. (Sheridan v. DuPont, 1996.) This sounds like a technical quarrel, but it's not. Employees can rarely prove intentional discrimination directly, because companies don't keep records with smoking guns in them. Courts have to infer discrimination - and giving fake evidence about why someone is fired, under traditional law, is enough to get the case past dismissal.

Nathan Newman has documented Alito's consistent hostility to workers' rights. In 35 labor and employment cases on which Alito has written an opinion, he has favored the employee or union side in only five. He regularly construes statutes to narrow the scope of protections for labor; and in reviewing facts defers to employers' discretion. In Delli Santi v. CAN Insurance Cos. (1996), for example, Alito in dissent agreed that the employer had fired someone with discriminatory intent, then covered the firing by saying the employee had violated company expense report policy. Alito would still have held the firing legitimate because it furthered an actual employment policy.

These cases illustrate a more general pattern in Alito's thinking - which is that people in authority usually have good reasons for what they do, and that the legal system should cut them a lot of slack and give them a lot of discretion. Employers, prison authorities, immigration judges, the police, don't have to give specific reasons or put forward evidence justifying what they do. Anyone who challenges such authorities, however, has to follow strict procedural requirements and satisfy high burdens of proof. - even if he is a pro se litigant or defendant facing the death penalty who has been saddled with incompetent counsel.

The exceptions are as revealing as the patterns. Alito, as we've seen, will not defer even to the Congress when it gives what he thinks are inadequate reasons for federal regulation that carries out liberal social policies. In reviewing decisions of the National Labor Relations Board, Alito is rarely deferential, though he defers to virtually every other government agency, even horridly malign and incompetent agencies like the Board of Immigration Appeals. And if the people challenging authority are claiming religious discrimination or interference with religious liberty, Alito proves very sympathetic to their claims and inclined to help them overcome procedural obstacles.

One can quite confidently predict that where governments and businesses confront individuals, on the whole individuals will lose Alito's vote except where they are claiming rights to free speech or religious liberty; and that Alito will be friendly to state authority when it tries to regulate morals or social order, but unfriendly when it tries to regulate business.

Conclusion

Alito tends to looks reasonable and moderate because of his style. But his style conceals a strategy. In his Justice Department days, Alito was up front about this. He often advised his superiors not to seek direct overruling of the cases they disliked, such as Roe v. Wade, but to pursue an incremental strategy -- to whittle away, case by case, at the surviving legal legacies of the liberal period. In the current political stalemate, where neither side can muster the votes to significantly amend legislation, whoever controls executive agencies and the courts can accomplish repeal of liberal policies, even those that command widespread public support, by stealth. At present the stakes in this battle are about as high as they can be, because the courts are assigned an essential role in preserving the Constitutional balance of power and the rule of law, against an executive that claims for itself dictatorial discretion. In particular, if the courts will not protect the liberties of unpopular subjects, such as those accused of aiding terrorists, no one will.

John Roberts played for Democratic votes in the Senate simply by asserting his independence from factions and patrons and declaring, "I am not an ideologue". This seemed to work in his case, and now only time will tell if it is true. Clarence Thomas told the Senate the same thing, that he had an open mind and no agenda. In his case it turned out not to be true. In Alito's case, unfortunately, almost nothing indicates that he has the independence to deviate from the causes that impelled him into law and a lifetime of federal service as a soldier in the conservative movement. If he is unwilling firmly and forthrightly to declare his independence from the ideologies and executive authorities he has served his entire career, the Democrats should try to keep him off the Court by filibuster.
Posted 10:18 AM by Robert Gordon [link]