Friday, November 04, 2005

Alito Is a Scary Man

The more I read about Samuel Alito, the more frightened I get at the prospect that he will be confirmed.

Here is a round-up:

Robert Gordon, in Slate: Alito's nickname, "Scalito" -- meaning, a "little Scalia" -- is deceptive. Alito is actually more consistently conservative than Scalia. If you're a liberal, Gordon writes, you would prefer Scalia.

In the great Alito-Scalito debate, everyone makes one mistake: They seem to assume that if Samuel Alito is as conservative as Antonin Scalia, that's about as conservative as a judge can be. Not so. In important ways, Samuel Alito could prove more conservative than Antonin Scalia. And the record suggests he will.

Richard Schragger, also in Slate, tells us that Alito's decisions show an unequivocal opposition to the right to choose.

Take his widely publicized lone dissenting vote in Planned Parenthood v. Casey.

In Planned Parenthood v. Casey -- the very case the Supreme Court later used to affirm Roe v. Wade -- Alito joined the majority in holding that it is not an undue burden on a woman's right to choose to require women to wait 24 hours for an abortion, to require minors to obtain parental consent, or to require that abortion providers give women information about alternatives to abortion and comply with certain disclosure and public-reporting requirements. But Alito went even further than the majority in that case. Though he joined the other two judges in upholding most of Pennsylvania's law, he disagreed with them that the spousal notification portion of the statute was unconstitutional. Alito would have upheld the entire statute, including the spousal notification provision, on the grounds that it did not constitute an undue burden. It was this part of the statute the Supreme Court struck down in Casey.
Th[e spousal notification] provision required a married woman to notify her spouse if she was planning to have an abortion unless she swore that her spouse was not the father of the child, her husband could not be located after diligent effort, the pregnancy was a result of a sexual assault that had been reported to the authorities, or she had reason to believe that notification would likely result in infliction of bodily injury.

The 3rd Circuit majority in Casey accepted expert testimony that this provision -- even with its exceptions -- would impose an undue burden on a woman's right to choose to undergo an abortion. The majority observed that most married women would voluntarily tell their husbands of their plans, but that in circumstances where they would not, requiring notification could result in spousal coercion. The exception for bodily harm, reasoned the majority, did not take into account the myriad forms of psychological coercion a husband could apply to a wife, including withdrawal of financial support or threats to dissolve the marriage. Moreover, the exception for spousal sexual abuse required that women report their abuser to the police, an action experts testified was likely to lead to further abuse and one a battered woman was unlikely to take. The majority of the Casey judges, taking account of the "real world consequences of forced notification," concluded that "because of the nature of the marriage relationship and the emotional character of the human response to pregnancy and abortion, the number of different situations in which women may reasonably fear dire consequences from notifying their husbands is potentially limitless."

But Alito rejected this "real world" approach, arguing that the plaintiffs had not sustained their burden of proving that the spousal notification provision would result in spousal coercion. Alito's interpretation of "undue burden" is noticeably crabbed: It is not enough, he argued, to show "that a law will have a heavy impact on a few women." Rather, those challenging the law must prove a "broader inhibiting effect." Alito thus demanded that the plaintiffs provide the court with a rough number of how many women would be inhibited from obtaining an abortion by the requirement of spousal notice. The majority's common-sense reasoning was not enough; the "undue burden" test required the plaintiffs to provide actual evidence that coerced spousal notification would inhibit some actual number of women's decision-making.

Of course, that kind of evidence is almost impossible to obtain. How would one begin to figure out just how many women would have sought an abortion but did not because they were required to notify their spouse? The plaintiffs provided expert evidence that women are often coerced physically and emotionally by abusive husbands; that the abortion decision presents them with a terrifying choice in those circumstances; and that required notification adds to the burden of an already difficult decision by holding out the threat of spousal reprisal. For Alito, this was not enough, and so he dissented.

Cass Sunstein, a law professor at the University of Chicago, writes in the Washington Post that Alito's dissents are often more illuminating than his majority opinions: They invariably take a position that is more conservative than the majority opinions. And in almost every case that has pitted individual rights or civil liberties against police power, or business interests; and in which the majority has ruled in favor of the plaintiff, Alito's dissent has taken the view in opposition to individual rights.

Consider some examples:

A woman and her 10-year-old child sued police officers for engaging in a body search in violation of their constitutional rights. The court allowed the case to go forward. Alito dissented, arguing that the police had qualified immunity.

Prisoners in long-term segregation units were banned from receiving newspapers or magazines from either the prison library or the publisher. The majority struck down the ban as a violation of the First Amendment. Alito dissented, finding the ban to be within the prison's legal authority.

A trial court had refused to allow an employee who complained of racial discrimination to cross-examine a witness who had given the employee an unfavorable performance evaluation. The court ordered that the cross-examination must be permitted. Alito argued in favor of the trial court's rulings.

An employee complained that racial discrimination accounted for the fact that she had not been promoted. The court ruled that she had raised serious issues of fact, justifying a jury judgment. Alito dissented, complaining of "an unwarranted extension of the antidiscrimination laws."

A local zoning board imposed land-use restrictions on a Hindu temple. The court ruled that the restrictions were arbitrary and unlawful. Alito concluded that they were legitimate.

Two parents brought a wrongful death action against a college, arguing that the risk to their son from an athletic event was foreseeable. Alito concluded that the facts on which the parents relied were "insufficient."

Several of Alito's dissents involve important federal statutes. In a case involving workers' rights, the court ruled that a coal processing site was a "mine" under federal law and therefore subject to the protection of the agency that regulated conditions at coal mines; Alito disagreed. In another case involving workers, a majority of the court ruled that certain reporters working for small community newspapers were entitled to the protections of the Fair Labor Standards Act. Alito dissented.

When the court ruled in favor of a Chinese citizen's claim for asylum on the grounds that he would be prosecuted under China's state security law, Alito accepted the government's view that the claim was not a valid basis for asylum. In another immigration case, the court reversed a government agency that failed to consider favorable factors when denying a request for relief from deportation. Alito dissented.

A number of Alito's dissents involve criminal defendants. When a majority of the court found a violation of the right to a speedy trial, he dissented. So, too, when the majority ruled that a district court had the authority to reduce a convict's sentence under the sentencing guidelines. So, too, when the majority ruled that habeas corpus relief was constitutionally required when the state had not met its burden of proving the defendant's specific intent beyond a reasonable doubt.

In a particularly important case, the court ruled that Congress has power, under the commerce clause, to ban the possession of machine guns. Alito dissented, emphasizing our "system of constitutional federalism."

Lindsay Beyerstein at Majikthise takes a look at the details of the case that earned Alito the nickname Strip-Search Sammy. This lawsuit was filed by an alleged meth dealer in Pennsylvania against police officers who strip-searched his wife and 10-year-old daughter, even though their search warrant authorized the police to search only the alleged meth dealer and his property.

In his dissent, Alito agreed with the police officers' argument that the affidavit attached to the warrant indicated that it would be desirable and appropriate to search everyone on the premises. Lindsay points out that the affidavit is just the police officers' "wish list"; the warrant issued by the judge tells the officers what they are actually permitted to do.

Alito argued that the affidavit supplied probable cause to search the little girl and her mother, and therefore it didn't matter whether the warrant actually named them as persons to be searched. I would have expected a judge with Alito's respect for the letter of he law to pay more attention to what the warrant actually said.

In an amusing dig at a certain high-ranking official in the Bush administration, Lindsay points out, "You go on meth raids with the warrant you have, not the warrant you wish you had."

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