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WP: Alito Leans Right Where O'Connor Swung Left

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  • Aniruddha Das
    Washington Post November 1, 2005 Alito Leans Right Where O Connor Swung Left By Charles Lane In 1991, Judge Samuel A. Alito Jr. voted to uphold a Pennsylvania
    Message 1 of 1 , Nov 1, 2005
      Washington Post
      November 1, 2005

      Alito Leans Right Where O'Connor Swung Left

      By Charles Lane

      In 1991, Judge Samuel A. Alito Jr. voted to
      uphold a Pennsylvania statute that would have
      required at least some married women to notify
      their husbands before getting an abortion; a year
      later, Justice Sandra Day O'Connor cast a
      decisive fifth vote at the Supreme Court to strike it down.

      In 2000, Alito ruled that a federal law
      requiring time off for family and medical
      emergencies could not be used to sue state
      employers for damages; three years later,
      O'Connor was part of a Supreme Court majority that said it could.

      And last year, Alito upheld the death sentence
      of a convicted Pennsylvania murderer, ruling that
      his defense lawyers had performed up to the
      constitutionally required minimum standard. When
      the case reached the Supreme Court, O'Connor cast
      a fifth vote to reverse Alito.

      The record is clear: On some of the most
      contentious issues that came before the high
      court, Alito has been to the right of the
      centrist swing voter he would replace. As a
      result, legal analysts across the spectrum saw
      the Alito appointment yesterday as a bid by
      President Bush to tilt the court, currently
      evenly divided between left and right, in a conservative direction.

      O'Connor "has been a moderating voice on
      critical civil liberties issues ranging from race
      to religion to reproductive freedom," said Steven
      R. Shapiro, national legal director of the
      American Civil Liberties Union. "Judge Alito's
      nomination . . . therefore calls into question
      the court's delicate balance that Justice
      O'Connor has helped to shape and preserve."

      "With this nomination, Bush is saying 'Bring it
      on!' " said John C. Yoo, a former Bush
      administration Justice Department official.
      "There is no effort to evade a clash with Senate
      Democrats. That's why conservatives are so happy."

      The differences in judicial philosophy between
      Alito and O'Connor are not absolute. He has not
      flatly written that Roe v. Wade , the Supreme
      Court's 1973 abortion rights ruling, should be
      overturned -- as have some other conservatives
      who were thought to be on Bush's list for the court.

      Alito struck down a New Jersey law that would
      have banned the procedure known by opponents as
      "partial-birth" abortion -- just as O'Connor did.
      His ruling, following the one O'Connor voted for,
      said the statute was unconstitutional because it
      did not include an exception for cases in which the woman's health was at risk.

      And despite the disagreement on the Family and
      Medical Leave Act's applicability to the states,
      the two appear to share a narrow view of the
      federal government's power to make national laws
      under its authority to regulate interstate commerce.

      The scholarly Alito earned his conservative
      reputation not through outspoken opposition to
      the Supreme Court's jurisprudence -- which was
      the approach taken by Judge Robert H. Bork in his
      failed bid for the Supreme Court in 1987.
      Instead, as a member of the U.S. Court of Appeals
      for the 3rd Circuit, which includes Pennsylvania,
      New Jersey, Delaware and the Virgin Islands, he
      sought to uphold precedent as he saw it through his own conservative filter.

      An irony of Alito's appointment as a
      replacement for O'Connor is that, in several of
      his most controversial rulings, he was exploring
      how much conservative running room there might be
      in sometimes-vague legal standards O'Connor
      herself had helped articulate on the Supreme Court.

      One such standard was O'Connor's notion, set
      forth in a series of abortion cases during the
      1980s, that Roe v. Wade protected the abortion
      right against any "undue burden" a state might try to place on it.

      In the 1991 case, Alito joined two other judges
      in upholding various abortion regulations the
      Pennsylvania legislature had adopted. But he was
      the only member of the panel who thought the
      law's requirement that married women must notify
      their husbands before having an abortion was not
      an "undue burden" as O'Connor had defined the concept.

      In an opinion that never called for the
      overruling of Roe or even spoke negatively of it,
      Alito said that the spousal-notification law
      would be all right -- in part because it made an
      exception for cases of spousal abuse.

      However, Alito had guessed wrong about
      O'Connor's meaning. When the case came to the
      Supreme Court in 1992, she joined a five-justice
      majority that reaffirmed Roe and ruled that the
      spousal notification law constituted an undue burden.

      On the Family and Medical Leave Act (FMLA),
      Alito's 2000 opinion concluded that a
      Pennsylvania state employee could not sue a state
      agency for damages for allegedly violating his right to paid sick leave.

      Citing Supreme Court opinions written or
      supported by O'Connor, he said that Congress had
      lacked the power to abrogate the state's sovereign immunity to suit.

      But, once again, this attempted application of
      precedent did not pan out -- because Alito had
      taken O'Connor's past rulings in a direction
      O'Connor herself did not want to go. Three years
      later, O'Connor reached a different result in a
      different case that presented the same issue.

      She joined a 6 to 3 majority of the court in
      deciding that the FMLA was an appropriate federal
      response to gender discrimination, as the states
      had a history of basing their leave policies on
      the stereotype that women should stay home to
      take care of sick family members or newborn children.

      In the death penalty case, a death row inmate
      in Pennsylvania argued that his lawyers had
      failed to investigate possible evidence that
      might have persuaded the jury not to sentence him
      to die. But Alito, citing a 1984 Supreme Court
      opinion by O'Connor, ruled that the lawyers had
      done a reasonable job, which, he said is all the Constitution requires.

      O'Connor cast a fifth vote at the Supreme Court
      to overrule Alito, joining the four most liberal
      justices in concluding that the man's trial
      counsel had failed to investigate his case aggressively enough.

      In addition to the late-term abortion case,
      Alito and O'Connor may agree about the limits to
      the federal government's power to legislate under
      the Constitution's commerce clause.

      In 1995, O'Connor was part of a five-justice
      majority that struck down a federal ban on gun
      possession within 1,000 feet of a school. The
      court concluded that such a law intruded on local
      authority without any proof of an effect on interstate commerce.

      The next year, Alito, citing that Supreme Court
      case, dissented from a 3rd Circuit decision that
      upheld a federal ban on possession of an
      automatic weapon, arguing that the sale of two
      guns by one person within Pennsylvania had no
      wider interstate impact. The Supreme Court
      declined to consider the gun seller's appeal.

      In 1999, Alito upheld a Jersey City holiday
      display on public property that included a
      menorah and a creche, as well as Frosty the
      Snowman, Kwanzaa symbols and a sign explaining
      the city's intent to celebrate cultural
      diversity. Alito cited 1984 and 1989 Supreme
      Court decisions, joined by O'Connor, that had
      established a rule that such a mixed exhibition,
      which did not "endorse" a particular religion, would be constitutional.

      The Supreme Court declined to review Alito's ruling.

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