Many of Alito's rulings have been at odds with Supreme Court

Knight Ridder NewspapersOctober 31, 2005 

WASHINGTON—Samuel Alito once wrote that employees who allege sex discrimination ought to have a tougher time proving their claims. The Supreme Court disagreed.

Alito once argued that Congress hadn't granted state workers the family-leave benefits that are mandated for other employees. The high court rejected his thinking again.

And Alito, now President Bush's choice to replace Justice Sandra Day O'Connor, once embraced a standard that would make it harder to punish water polluters. But the Supreme Court didn't go along.

In Alito's 15 years of rulings on the Third Circuit Court of Appeals in Philadelphia, many of his interpretations of federal law and the Constitution are at odds with established thinking and practice, and ultimately they've been rejected by large majorities on the high court he hopes to join.

Alito's most aggressive opinions—on everything from abortion and civil rights to gun control and federal authority—are already drawing fire from the critics lining up to oppose his confirmation. And they'll likely be a focus of the debate on the Senate floor.

Nearly everyone expected Bush to pick someone with superior conservative bona fides after White House counsel Harriet Miers' catastrophic nomination was withdrawn.

But some court watchers say Alito's conservatism often takes shape in opinions that attempt to push the law closer to his ideals, rather than simply reflect it. It's an approach that could be difficult to define as restrained—the philosophy preferred by many conservatives. And that could leave Alito open to charges that he's an activist.

"It's clear he'll write opinions in cases just to voice what are clearly unpopular opinions," said University of Pennsylvania law professor Nathaniel Persily. "And he has 15 years of opinions for people to go through, so there's potentially a lot of material for people to find."

Douglas Kmiec, who worked with Alito in the Department of Justice during the Reagan administration, described the judge as "careful in his reasoning" and said any notion of him as an activist is "not the Sam Alito I know."

Kmiec said Alito does have a knack for pointing out "weaknesses" in court precedent and the conflicts and inconsistencies that he believes should be remedied. "But he generally does not reach out to decide those issues if they aren't squarely before him in a case," Kmiec said. "In that sense, Sam is more scholar than activist. And most of the disagreements with the high court are explainable in similar terms."

To be sure, much of Alito's work suggests a traditional conservative approach, one that resists broad, sweeping opinions and is marked by meticulous examination of the facts in each case, and the language used in laws and in the Constitution.

Alito has also written several opinions whose results should please liberal interests: cases asserting disability rights, preserving due process for criminal defendants and securing free-speech rights.

When he was introduced at the White House Monday, Alito also spoke of the limited role that judges play and its importance.

"Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans and to do these things with care and with restraint," Alito said.

Not all of his work may square with that notion, though.

In a 1996 employment discrimination case, Sheridan v. Dupont, Alito concluded in his dissent that victims of sex discrimination in the workplace should meet a higher standard of proof than was required.

Alito said proving discrimination and that the employer was responsible weren't always enough to ensure that the claim wouldn't be dismissed by a court. He based his interpretation on the rulings of another, more conservative appellate court decision, urging his colleagues on the 3rd Circuit to adopt that standard.

They didn't, and the Supreme Court later unanimously rejected that same rationale in another discrimination case, Reeves v. Sanderson Plumbing Products, in 2000.

Kmiec said the Sheridan opinion is an example of restraint on Alito's part, because he acknowledged that he was bound by his own circuit's rules; he was simply pointing out his preference for another approach.

"That's one of the things he does, and I think it's from a scholarly point of view," Kmiec said.

But Alito's interpretation would have led to a fundamental change in the way sex discrimination claims are handled and would have conflicted with what Congress intended when it enacted anti-discrimination laws.

In another knotty case, Chittister v. Department of Community and Economic Development, Alito questioned Congress' power to require state governments to grant family and medical leave to men and women equally.

Alito's opinion, which was echoed in opinions from other lower courts, would have denied protection to millions of workers whom Congress clearly intended to protect with the Family and Medical Leave Act of 1993.

The Supreme Court contradicted Alito's thinking in a 2003 ruling in Hibbs v. Nevada Department of Human Resources. The late Chief Justice William H. Rehnquist wrote the opinion.

Alito also joined another judge in 1997 in a ruling that attempted to make it more difficult to hold polluters accountable when they fouled water supplies.

Rather than applying the standards that punished companies based on how much they polluted a body of water, Alito embraced an approach that would require proof that the pollution damaged the water. The ruling, in Public Interest Research Group (PIRG) v. Magnesium Elektron, invalidated an existing $2 million fine.

Three years later, the Supreme Court rejected Alito's analysis, saying in another case that the new standard raised "the hurdle higher than ... necessary."

"A number of his opinions, like this one, suggest he's pushing the legal envelope," said Doug Kendall, an environmental lawyer and executive director of the Community Rights Counsel, a public-interest law firm in Washington. "What's troubling is that in some of his opinions, Judge Alito has been aggressive even as an appeals court judge. As a Supreme Court justice, he won't be as bound."

Kendall noted that Alito has written other opinions that question the reach of Congress' regulatory power, and, famously, embraced an abortion restriction in a landmark Pennsylvania case that was later rejected by the high court.

"There's a tremendous amount of research that needs to be done before he's confirmed," Kendall said. "I don't think many people have focused that intently on his record, but it's long and at least initially disturbing."

Kmiec said he's confident Alito will respect court precedent and embrace the restraint that is a hallmark of judicial conservatism.

"This was not someone who gave quick, seat-of-the-pants kind of judgments," Kmiec said. "Even when the Supreme Court has reversed positions he has held, they have often gone out of their way to applaud his particular reasoning. In the end, he comes up with opinions that are quite defensible, and I think he'll do the same on the high court."

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(c) 2005, Knight Ridder/Tribune Information Services.

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