Justice for All: The Supreme Court

Alito Talking Points

Samuel Alito, Supreme Court Nominee

· Alito worked for the solicitor general's office in 1981-1985, and also as deputy assistant U.S. attorney general from 1985-1987 before becoming a federal prosecutor and judge. President Bush picked him for the Supreme Court in October

· If confirmed by the Republican-controlled Senate, the 55-year-old federal appeals court judge would succeed retiring Justice Sandra Day O'Connor. She has often been the swing vote on abortion, the death penalty, affirmative action and other contentious issues.

· The Senate hopes to hold a final vote on Alito's confirmation by Jan. 20.

Source: Judiciary Democrats Want Alito Papers: Judiciary Democrats Call for Justice Department to Release More Alito Documents By JESSE J. HOLLAND Associated Press Writer, The Associated Press

· In Bray v. Marriot Hotels, a racial discrimination case involving an African-American female, the majority concluded that Alito’s dissenting view would protect employers from suit even in situations where the employer’s belief that it had selected the “best” candidate “was the result of a conscious racial bias.”

· In Planned Parenthood v. Casey, Alito supported a restriction on abortion access that required women to notify their spouses before obtaining an abortion—a restriction that was later found unconstitutional by the Supreme Court because of its impact on domestic violence survivors.

Source: Final Letter on Judge Alito from Women of Color, November 9, 200, presented by Silvia Henriquez, Executive Director, National Latina Institute for Reproductive Health

What’s At Stake for Women

· FAMILY & MEDICAL LEAVE ACT: The groundbreaking Family & Medical Leave Act (FMLA) has been instrumental in helping women and men balance their work and family responsibilities. More than 50 million Americans have used this unpaid leave to care for a seriously ill family member or spend time with a new baby. In a six to three decision, Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003), the Court ruled that state employees could challenge their state employers for violating their right to the FMLA. A contrary opinion would have deprived five million workers and their families of this important protection.

· QUALITY HEALTH CARE SERVICES: By a five to four vote in Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002), the Court upheld an Illinois law permitting the independent review of an HMO’s decision to deny a treatment it considered not “medically necessary.” By holding that federal ERISA law does not preclude these types of state external review laws, the Court agreed that patients have the right to have an independent panel of doctors review the HMO’s decision about whether something is “medically necessary.”

· REPRODUCTIVE PRIVACY: The Constitutional right to privacy that enables women to control their reproductive health has withstood 30 years of attack. By a narrow majority, the Court has upheld this fundamental right and rebuffed numerous efforts to overturn its decisions. The most recent ruling, Stenberg v. Carhart, 530 U.S. 914 (2000), invalidated a state law that criminalized late term abortion procedures, even when necessary for preserving the health of the pregnant woman and could have outlawed the most common abortion procedures used during the second trimester.

· AFFIRMATIVE ACTION: Affirmative action programs have been invaluable tools for expanding opportunities for women and minorities, remedying discrimination, and bringing much needed diversity to America’s institutions. In a series of five to four decisions, including the most recent decision in Grutter v. Bollinger, 539 U.S. 306 (2003), the Court has upheld the use of affirmative action to achieve these goals.

· PROTECTION AGAINST GENDER-BASED DISCRIMINATION: Since the 1970s, the Court has made clear that we should look closely at laws that treat women and men differently and exclude women from opportunities and benefits. In 1996, in United States v. Virginia, 518 U.S. 515, the Court struck down a males-only admissions policy that discriminated against women. However, as recently as 2001, the Court reinforced gender-based stereotypes about parenting in Nguyen v. INS, 533 U.S. 53, by allowing the government to have different rules for fathers and mothers when establishing citizenship for children born abroad.

Source: The National Partnership for Women & Families

HANGING BY A THREAD: 5 RIGHTS WOMEN COULD LOSE

Why One Supreme Court Justice Makes a Difference www.nationalpartnership.org

What’s At Stake for All

· Alito's support for letting top officials authorize spying without warrants inside the United States, detailed in documents released last week, has become a focus for critics who warn that he would be overly deferential to the executive branch in cases involving the separation of powers.

· Alito's critics point to a 1984 memo he drafted as a Justice Department lawyer, which defended government officials' right to spy domestically without warrants. The case in question involved whether President Richard M. Nixon's attorney general, John Mitchell, could be sued for FBI eavesdropping during a 1970 investigation into an alleged plot to kidnap Henry Kissinger, then the national security adviser. In the memo, Alito advised that the case be appealed only on procedural grounds; but he also wrote that the attorney general should have absolute immunity for the warrantless wiretapping.

Source: Alito faces harder review: Scrutiny likely on executive power, in light of 1984 memo, NSA spying, By Julie Hirschfeld Davis, Sun Reporter

· Limits on Congressional Power: Several of Judge Alito’s opinions have imposed limits on Congressional authority. Judge Alito has held Congress to a more stringent standard than that of the Supreme Court or other appeals courts hearing challenges to the same statutes. For example, Judge Alito argued in dissent in United States v. Rybar against a ban on machine guns that five other appellate courts and the Third Circuit itself upheld. Judge Alito also authored the majority opinion in Chittister v. Department of Community and Economic Development, invalidating parts of the Family and Medical Leave Act for exceeding the bounds of congressional authority—a position the Supreme Court subsequently rejected.

· Procedural Fairness: When given latitude in cases involving individuals’ procedural rights, Judge Alito consistently has decided to limit access to courts, at times leaving litigants with fewer procedural options. He has construed narrowly the constitutional requirements that individuals receive notice and an opportunity to be heard before being deprived of their rights. He has strictly interpreted standing requirements and has limited causes of action. He also has been reluctant to review the actions of executive branch officials, making it more difficult for individuals to hold the government accountable for its actions. There is also evidence that Judge Alito gives some groups of litigants more leeway than others to pursue their claims.

· Free Speech: Although Judge Alito has supported the free speech claims of business interests, government agents, and student groups, and has protected the press against libel claims, he has refused to extend this support to the claims of prisoners seeking access to newspapers and photographs of their families.

· Law Enforcement: Judge Alito’s opinions reveal a willingness to defer to law enforcement officials in criminal cases and a lack of sensitivity to class-based disparities in the criminal justice system. There is some evidence that he may treat wealthy litigants differently. Even when he finds that a defendant’s rights have been violated, he consistently declines to provide a remedy. As a result he ruled for the government in almost every case reviewed.

· Civil Rights: In the area of civil rights law, Judge Alito consistently has used procedural and evidentiary standards to rule against female, minority, age, and disability claimants. He has taken a markedly different approach to religious discrimination, ruling in favor of religious minorities in various contexts.

· Workers’ Rights: In the related field of workers’ rights, Judge Alito consistently has sought to limit the scope and reach of statutes protecting workers’ rights and to raise the bar that employee plaintiffs must overcome to bring legal claims. While many of these cases involved technical procedural issues, Judge Alito’s opinions are consistent in outcome. The employee or union would have prevailed in only five of the 35 employment and labor opinions he wrote.

· Environmental Law: When deciding environmental cases, Judge Alito tends to defer to regulatory agency decisions. He is reluctant to preempt state environmental laws and directives unless a federal statute is clear in its intent to achieve this effect.

Source: The Alito Project

http://campusprogress.org/uploads/YLSAlitoProjectFinalReport.pdf

Mainstream Opinion

· A majority of Americans support the confirmation of US Appeals Court Judge Samuel Alito to the Supreme Court to fill the seat of retiring Associate Justice Sandra Day O'Connor, according to a new Washington Post/ABC News poll.

· The survey found that 54 percent of the survey's respondents said the Senate should confirm Alito, while 28 percent said he should not be approved. That marks a modest increase in public support for Alito since November, when 49 percent of the respondents said he should be confirmed and 29 percent said he should not. In both surveys, about 1 in 5 Americans said they did not know enough about the nominee to have an opinion.

· The new poll found some evidence that the abortion issue plays an important but not decisive role in shaping public perceptions of Alito.

· Although his current views on abortion are not publicly known, memos that he wrote two decades ago, while he was a lawyer in the Reagan administration's Justice Department, indicated that he opposed Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion.

Source: Majority in US support Alito nomination, poll says By Richard Morin, Washington Post | December 22, 2005

More information on Alito can be find on the Findlaw Resource page:

http://news.findlaw.com/newsmakers/samuel.alito.html#cases