WP: Alito Leans Right Where O'Connor Swung Left
- 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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