Nominee Alito opposes abortion, worker's rights
Jenny Brown
November/December 2005

Although George W. Bush's poll numbers are dropping like dead pigeons, he's still got the power to do lasting damage. By nominating a man to the Supreme Court who seems to be to the right of everyone on the court with the possible exception of Clarence Thomas, Bush is trying to insure that his unpopular positions are codified in the law, the majority opinion of the country notwithstanding.

From the minute Bush nominated Judge Samuel Alito for a lifetime appointment to the Supreme Court, it was clear that he was a favorite of the far right. His record of right-wing judicial activism and hostility to fundamental rights and liberties were already well documented.

Business Week reported when he was nominated that "one group is breathing a big sigh of relief: Corporate America. Of the dozen or so names on Bush's rumored short list of high court candidates, Alito ranked near the top for the boardroom set." Lorraine Woellert wrote November 1 at, "The President's new Supreme Court nominee has been a staunch proponent of limits on legal liability, employee rights, and federal regulation."

Then, in mid-November, an application written by Judge Alito, recovered from the Reagan archives revealed his explicit opposition to the right to choose and affirmative action. In his own words, Alito declared "the Constitution does not protect a right to an abortion." In another recently discovered document, Alito declared that protecting citizens' health, safety, and welfare isn't the federal government's job.

Alito wrote in his 'Personal Qualifications Statement' when applying to be an Assistant Attorney General under Ronald Reagan that "I am and always have been a conservative" and that "It has been an honor and source of personal satisfaction for me to serve... and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed, and that the Constitution does not protect a right to an abortion."

When Alito was a Justice Department lawyer in the 1980s, he urged President Reagan to veto legislation that would have protected consumers from crooked car dealers by making odometer fraud more difficult. Alito's rationale for urging a veto of the Truth in Mileage Act is stunning: protecting Americans is not the federal government's job. "After all," wrote Alito in his memo recommending a veto, "it is the states, and not the federal government, that are charged with protecting the health, safety, and welfare of their citizens." President Reagan rejected Alito's advice and signed the bill.

As research continues into Alito's extensive record, here are some of his most troubling opinions, compiled by People for the American Way (

1. Privacy: In dissent, Alito would have upheld the strip search of a mother and her ten-year old daughter, even though the warrant allowing the search did not name either of them. Judge Michael Chertoff, now head of the Department of Homeland Security, criticized that position as threatening to turn the constitution's search warrant requirement into little more than a "rubber stamp." Doe v. Groody

2. Community safety: Alito, dissenting in the case of United States v. Rybar, said that Congress does not have the power under the Commerce Clause to restrict the transfer and possession of machine guns at gun shows. In response to Alito's assertion that Congress must make findings or provide empirical evidence of a link between a regulation and its effect on interstate commerce, the majority said, "Nothing in Lopez (an earlier Supreme Court case) requires either Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute."

3. Family and Medical Leave: Writing for a unanimous court in Chittister v. Dep't of Community & Economic Development, Judge Alito held that Congress did not have the authority to allow state employees to sue for damages under one section of the Family and Medical Leave Act. By contrast, the Supreme Court in a later case (Nevada Dep't of Human Resources v. Hibbs) upheld the FMLA against a similar challenge; the Court's decision was written by Chief Justice Rehnquist and joined by Justice O'Connor.

4. Reproductive Freedom: In dissent, Alito would have upheld a provision of Pennsylvania's restrictive anti-abortion law requiring a woman in certain circumstances to notify her husband before obtaining an abortion. His colleagues on the Third Circuit and the Supreme Court majority disagreed and overturned the provision. Planned Parenthood of Southeastern Pennsylvania v. Casey

5. Racial Discrimination in the Workplace: In dissent, Alito argued for imposing an evidentiary burden on victims of employment discrimination that, according to the majority, would have "eviscerated" legal protections under Title VII of the Civil Rights Act. In particular, the majority said that Alito's position would protect employers from suit even in situations where the employer's belief that it had selected the "best" candidate "was the result of conscious racial bias." Bray v. Marriott Hotels

6. Gender Discrimination in the Workplace: As a lone dissenter in a 10-1 decision of the full Third Circuit, Alito would have made it more difficult for someone alleging discrimination to present sufficient evidence to get his or her case to a jury. In particular, Alito would have prevented a woman claiming gender discrimination from going to trial, even where she had produced evidence showing that her employer's claim that it had a legitimate reason to deny her a promotion was a pretext for the employer's allegedly discriminatory actions. Sheridan v. E.I.DuPont de Nemours and Co.

7. Racial Discrimination in Jury Selection: Alito cast the deciding vote and wrote the opinion in a 2-1 ruling rejecting claims by an African American defendant who had been convicted of felony murder by an all white jury from which black jurors had been impermissibly struck because of their race. The full Third Circuit reversed this ruling, and the majority specifically criticized Alito for having compared statistical evidence about the prosecution's exclusion of blacks from juries in capital cases to an explanation of why a disproportionate number of recent U.S. Presidents have been left-handed. According to the majority, "[t]o suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants . . . " Riley v. Taylor

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