November 1, 2005

To: Journalists
Fr: Ralph G. Neas, President, People For the American Way
Re: Alito’s Record: Threats to Americans’ rights and liberties

As research continues into Judge Samuel Alito’s extensive record, here are some of his most troubling opinions:

• 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
• 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.”
• Family and Medical Leave: Writing for a unanimous court, Alito held that Congress did not have authority to require state employers to comply with the Family and Medical Leave Act. This ruling was repudiated by the Supreme Court in a later case in which Chief Justice Rehnquist wrote the Court’s decision. Chittister v. Department of Community and Economic Development.
• 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
• 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
• Gender Discrimination in the Workplace: As a lone dissenter in a 12-1 decision of the full Third Circuit, Alito would have made it more difficult for someone alleging discrimination to present sufficient evidence to get their 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.
• 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