Alito Profiling & Presumptions

Alito Profiling & Presumptions


As the nomination process unfolds, Samuel Alito’s profile and rulings will now be put under a microscope.

The two Alito rulings that will no doubt receive the most attention are ACLU v. Schundler and Planned Parenthood v. Casey.

Alito wrote the majority opinion [1] in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999), holding that a holiday display on city property did not violate the Establishment Clause because it included secular symbols, such as a large plastic Santa Claus, in addition to religious symbols.

Such mixed displays had previously been held constitutional by the U.S. Supreme Court. The ACLU argued that a previous city display that was ruled unconstitutional because it lacked secular symbols colored the purpose of the new display. Alito wrote:

“As our prior discussion of Lynch and Allegheny County illustrates, the Supreme Court’s decisions regarding holiday displays have been marked by fine line-drawing, and therefore it is not easy to determine whether particular displays satisfy the Court’s standards.

Under these circumstances, the mere fact that city officials miscalculate and approve a display that is found by the federal courts to cross over the line is hardly proof of the officials’ bad faith.”

A dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), arguing that a Pennsylvania law that required women seeking abortions to inform their husbands should have been upheld.

As Judge Alito reasoned, “[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems â€â€? such as economic constraints, future plans, or the husbands’ previously expressed opposition â€â€? that may be obviated by discussion prior to the abortion.” while also adding some exceptions:

“These exceptions apply if a woman certifies that she has not notified her husband because she believes [FN4] that (1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her.”

Chief Justice Rehnquist’s dissent from the Supreme Court’s 5-4 [corrected] decision striking down the spousal notification provision of the law quoted Judge Alito’s dissent and expressed support for Judge Alito’s reasoning.

Read the rest of the cases listed and draw your own conclusions.

My initial reaction is that it would appear as if Alito champions a more balanced and thoughtful view of constitutional law and allows for an interpretation which takes into account and addresses the greyness that can be involved in these type of rulings.

Yes, looking at a nominee’s past rulings can provide greater insight into future decisions, but keep in mind, no two cases are exactly the same and require legal interpretation in the context of what is driven by constitutional meaning.

What’s needed at this level is a keen understanding of constitutional law and its wise application, not just a presumption of someone’s personal beliefs.

The issue in front of the nominating committee should be determining whether this person has demonstrated an astute understanding, interpretation, and application of constitutional law, not just whether he’s inclined to overturn Roe v. Wade.

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  • Meredith

    Fair enough Denise, but under your “test,” he gets confirmed. Lots of people are qualified and have a great understanding of constitutional interpretation. It’s just that some of us would prefer that our civil liberties not be taken away, and to that end, it’s EXTREMELY important to review his past opinions and other documentation.

  • Greg

    Under Denise’s test he does get confirmed, and rightly so. The president has the authority and the duty to nominate justices. So long as those nominees are, to the best of the senate’s ability to ascertain, on the side of the constitution, it’s unconstitutional for the senate to keep them from the Supreme Court. It’s not their place. If we disagree with a particular judicial philosophy, we should vote for a different presidential candidate or else amend the constitution to strip the president of his / her right to nominate them. (Frankly though, any lawyer willing to put up with a national campaign to get to the Supreme Court isn’t someone I’d want there anyway). Agree with him or not, he makes sound legal arguments in his decisions and consistently applies the constitution to the cases before him.

  • Andrew Case


    No offense taken.

    You are right to point out that both of these cases are significant, and that both are far less troubling than they appear at first glance.

    The ACLU case bears a striking resemblence to the two “ten commandments” cases heard by the court this term, cases which were both decided by Breyer’s swing vote. He ruled that a 10 commandments monument in place for 50 years, put up by a secular organization, was constitutional, while a recent plaque put up by a religious group was not. At issue was the actual and perceived intent of the people who put up the display.

    One thing you leave out of the Schundler case is that the display included a banner embracing diversity, and the “religious symbols” were not merely Christian (there was a menorah at least, and I believe some Kwanza-related materials).

    As I said before, Casey was a “notification” rather than a “permission” case, and when you strip everything away, could be pared down to one of the many instances when state legislatures must be allowed to make bad laws.

    All in all, I’m not as worried by this guy as I would have been by Luttig, Brown, Jones, etc.

    Sorry about the confusion; I enjoy your pieces and will post as myself in the future.