Samuel Alito
By Daniel Japko
For someone who was never terribly controversial in his personal life, Samuel Alito’s nomination to the Supreme Court caused a lot of controversy during his confirmation process. The Senate vote was the closest for a prospective justice since Clarence Thomas’ confirmation in 1991. The controversy mainly dealt with abortion, Presidential power, and Democratic and Republican senators hoping Alito would support their views if he were to get to the bench. The vote to confirm Alito was almost entirely on party lines, and on February 1, 2006, he was sworn in as the 110th justice of the Supreme Court, succeeding Sandra Day O’Connor.
Alito’s journey to the Supreme Court was not easy. His father, Samuel Alito Sr., immigrated to New Jersey with his parents when Alito Sr. was a baby. Alito Sr. graduated high school as the valedictorian of his class, but didn’t have any money for college. Alito Sr. was prepared to work in a factory when he was awarded a $50 scholarship at the last minute. He became a teacher and served in World War II. After his tour, he worked in the New Jersey Legislature as a legislative advisor. Alito Sr.’s job required him to write clearly and effectively, qualities that he later taught his son, Alito. Alito’s mother was a first-generation American and was the first in her family to get a college degree. She worked as a teacher and principal until she retired. Alito said in his opening statement for his confirmation hearings that his mother and father “instilled in my sister and me a deep love of learning.”
Alito graduated as the valedictorian at Steinert High School in Hamilton Township, New Jersey and attended Princeton University. He recalled at a confirmation hearing how different the school was compared to his childhood neighborhood. “I saw some very smart people and very privileged people behaving irresponsibly and I couldn’t help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community,” Alito said. Alito moved on to Yale Law School in 1972 at the height of the Vietnam War protests. He didn’t want to cancel campus activities to protest the war, saying it would disrupt other students’ daily lives. While at Yale Law, Alito won much recognition for his writing and oral argument skills. He published a note in The Yale Law Journal that deemphasized the importance of a judge’s philosophy in regards to his rulings.[1]
Alito began his legal career as a law clerk for Judge Leonard Garth of the Third U.S. Circuit Court of Appeals in 1976. In his confirmation hearings, Alito was thankful that he started his career with a judge who was open-minded. “He read the record in detail on every single case that came before me,” Alito said. “He insisted on scrupulously following precedents. He taught all of his law clerks that every case has to be decided on an individual basis, and he really didn’t have much use for any grand theories.” Alito worked in several legal jobs in the next 15 years. He was an assistant U.S. attorney in the district of New Jersey, and then was eventually promoted to deputy assistant U.S. attorney general in the U.S. Department of Justice in 1985. He worked in the Office of Legal Counsel, which fashions executive orders, considers the constitutional implications of proposed legislation and renders opinions in disputes. Government officials turn to the office for an honest answer as to what the law requires.[2] John. F. Manning, a Harvard law professor who worked there with Judge Alito, said that Alito’s work there kept the ideas of separation of powers and the structure of government in the front of his mind.
Alito was appointed to Circuit Court of Appeals in 1990, where he worked for 15 years. His judgments over those years revealed a conservative mindset that puts greater importance on precedent.[3] Alito heard four abortion cases and three times deferred to Supreme Court precedent. In a U.S News and World Report article, a summary of his judgments during this time showed that “he ruled that parents could not sue for wrongful death of a fetus because the Constitution does not protect the unborn, and he and his colleagues rejected as too burdensome a Pennsylvania law requiring that victims of rape or incest report the crime be-fore seeking Medicaid funds for an abortion.”[4] In his application for a political appointment in the Reagan administration in 1985, Alito wrote that he thought Roe v. Wade should be overturned and created a strategy to chip away at the controversial court case without directly overturning it. When questioned about these statements in the Senate Supreme Court confirmation hearings, Alito said that he wrote them to insure that he would get the appointment and that they did not reflect his views at that time.
Alito’s confirmation to the Supreme Court was a very contentious and political one. The Republican majority in the Senate praised Alito’s career and told Democrats to avoid what they saw as unfair questions toward him. Democrats wished that Alito would follow in the moderate footsteps of the justice he might replace, Sandra Day O’Connor. Both sides made it clear through their questions that they wanted Alito to protect decisions they liked and overturn decisions they didn’t like. For all that was made of his conservative nature, Alito seemed to hint that he wouldn’t always lean to the right on every case he heard, saying “Good judges are always open to the possibility of changing their minds.”[5]
One of the most controversial moments of the hearings occurred when an organization from Alito’s time at Princeton was brought to the forefront. In an application for a Justice Department position in the Reagan administration, Alito said he was a member of the Concerned Alumni of Princeton. The organization spread racist, sexist, and homophobic opinions in its magazines, opinions that Alito rejected during the hearings. In an attempt to diffuse the situation, Republican Senator Lindsay Graham of South Carolina asked Alito if he was a “‘closet bigot.’” The exchange brought Alito’s wife, Martha, to tears, and she had to leave the hearing room. The departure took many in the room by surprise.
After all the debate over Alito’s record and his past, his nomination was confirmed by a vote of 58 to 42. It was the second closest Supreme Court nomination vote in the past century; the only vote that was closer was the 52-48 vote to confirm Clarence Thomas in 1991. Liberal groups criticized the Democratic Party after the vote, saying that they gave in to Republican pressure and didn’t try hard enough to filibuster the vote. Conservative organizations celebrated Alito’s confirmation, hoping that he would continue his conservative judicial history and help outlaw abortion.
Alito’s history as a Supreme Court justice has been short. He has been an associate justice for only five years, and he hasn’t written many opinions for the majority. But two First Amendment cases he has ruled on have shown two ways of thinking. In the controversial Snyder v. Phelps, which was decided on March 2, 2011, Albert Snyder sued Westboro Baptist Church for the intentional infliction of emotional distress after the church protested outside of his son’s military funeral with inflammatory, anti-homosexual language. The court ruled 8-1 in favor of the church, ruling that the group’s right to free speech was more important than Snyder’s reaction to their message.
Alito was the sole dissenter, claiming that the church did not have free speech in this instance since they “launch[ed] vicious verbal attacks that make no contribution to public debate.”[6] Alito points out that the protestors didn’t have to spread their message at a funeral, a place where respect should be paid to the person who is being honored. He writes that they could have protested at the U.S. Capitol, the White House, the Pentagon, or any public road or park. But they chose to protest at a military funeral where they knew they would get the most attention. This dissent was very interesting because Alito tends to defer to precedent more often than not. Here, Alito says that the sole purpose of the protest was to garner attention for Westboro Baptist Church, not to make any meaningful message. All eight other justices agreed that the First Amendment’s protection of free speech outweighed any offensiveness that the church’s message carried. It’s surprising to see Alito’s dissent appeal more to emotions than hard, legal reasoning.
Another major First Amendment case Alito has ruled on was Morse v. Frederick. In the case, Joseph Frederick, a high school senior, was suspended by his principal, Deborah Morse, after he displayed a banner in public that said “BONG HiTS 4 JESUS” while the Olympic torch passed through the town. Morse took the banner after Frederick refused to take it down. The Supreme Court ruled in favor of Morse, saying that the educational mission of the public school takes precedence over unlimited free speech for students during the school day.
Alito filed a concurring opinion in which he assumed the decision would only restrict speech that advocated illegal drug use. Alito worries that the “educational mission” argument would give schools authority to suppress social and political speech if they did not agree with a particular message. But he acknowledges that the school environment is unique, and administrators must have authority to restrict speech that could lead to violence. This case falls in line with Alito’s conservative nature. He wishes to protect the First Amendment, but feels that promoting drug use takes the idea too far. He also wants to ensure that schools maintain a good learning environment, but not at the cost of true free speech for all students. Alito concurs with the majority, but only because this case makes a particularly narrow exception to the First Amendment.
Samuel Alito’s short term on the Supreme Court has not produced the extreme conservative justice that some Republicans hoped would occur. While Alito does have a right-leaning judicial history, he was taught throughout his college and early legal career to stay neutral and consider both sides of every case. His father and mother worked from humble beginnings have successful careers, and Alito wanted to emulate their work ethic. No matter how he rules on certain cases, Alito will be a mainstay on the court for decades to come.
Last updated on April 30, 2011.
Bibliography
http://www.supremecourt.gov/about/biographies.aspx
http://www.fjc.gov/servlet/nGetInfo?jid=26
http://www.oyez.org/justices/samuel_a_alito_jr
http://www.nytimes.com/2006/02/01/politics/politicsspecial1/01confirm.html?_r=1&ref=samuelaalitojr
http://www.nytimes.com/2006/01/09/politics/politicsspecial1/alito-statement.html?ref=samuelaalitojr
http://www.usnews.com/usnews/news/articles/060109/9alito.htm
“Nominee promises no bias.(News).” St Louis Post-Dispatch [MO] 10 Jan. 2006: A1. InfoTrac Newsstand. Web. 27 Feb. 2011.
“‘When a Precedent Is Reaffirmed, That Strengthens the Precedent’.” New York Times 11 Jan. 2006: A26(L). InfoTrac Newsstand. Web. 27 Feb. 2011.
Shepard, Scott. “ALITO FACES SENATE GRILLING NOMINEE VOWS NOT TO USE POST FOR POLITICS.” Palm Beach Post [West Palm Beach, FL] 10 Jan. 2006: 1A. InfoTrac Newsstand. Web. 27 Feb. 2011.
Shepard, Scott. “Democrats turn up heat on Alito; Nominee deflects queries on abortion, affiliations amid partisan sniping.(News).” Atlanta Journal-Constitution [Atlanta, GA] 12 Jan. 2006: A3. InfoTrac Newsstand. Web. 27 Feb. 2011.
Shepard, Scott. “Ex-colleague: Alito wouldn’t overturn Roe.(News).” Atlanta Journal-Constitution [Atlanta, GA] 15 Jan. 2006: A7. InfoTrac Newsstand. Web. 27 Feb. 2011.
[1] http://www.nytimes.com/2005/11/07/politics/politicsspecial1/07alito.html?pagewanted=1&ref=samuelaalitojr
[2] Ibid.
[4] Ibid.
[5] Shepard, Scott. “ALITO FACES SENATE GRILLING NOMINEE VOWS NOT TO USE POST FOR POLITICS.” Palm Beach Post [West Palm Beach, FL] 10 Jan. 2006: 1A. InfoTrac Newsstand. Web. 27 Feb. 2011.
[6] Snyder v. Phelps
Free Speech/Press Honors 2011 