The Alito Agenda

I. Introduction

Lambda Legal is an advocacy organization. We’re committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and people with HIV. As an advocate, we have a vision of what’s just. Some call it an agenda.

Lambda Legal pursues its vision of justice primarily through litigation. Effective litigation to advance an agenda depends on fine legal craftsmanship. We know what fine legal craftsmanship looks like because we seek to engage in it.

We have studied Samuel Alito’s record closely. We carefully have analyzed many of the judicial decisions he has written. Applying our litigation expertise to this analysis, we conclude that Alito is a fine legal craftsman who knows how to read and respond to precedent. This is one important qualification for a U.S. Supreme Court Justice.

Our expertise also helps us look behind legal craftsmanship. This part of Lambda Legal’s examination of Alito’s judicial record, especially when considered in light of extensive statements by the nominee that have been released during the confirmation process, reveals that Alito has a clear and consistent political ideology and agenda. He deploys his fine legal craftsmanship and existing precedent in the service of that political agenda — far too often, the results for Alito are predetermined.

It is the nature of Alito’s agenda that is of great concern to us. In fact, every member of the judiciary should have an agenda: a commitment to upholding the values embodied in the Constitution and Bill of Rights, as well as to upholding the nation’s civil rights and other laws. Above all else, every member of the judiciary must have an agenda of commitment to the principles of liberty, equality and justice for all. Unfortunately, Alito’s agenda is of a different nature. It stands apart from any principle that can reasonably be located in the Constitution. Instead, it his based on his personal political ideology. As we explain below, Alito’s agenda puts particular political ends above a fair reading of the Constitution, Bill of Rights and the laws passed by Congress. Put differently, his political agenda drives his legal decisions. He then applies legal craftsmanship and precedent to justify the results he is trying to achieve.

In Lambda Legal’s opinion, this disqualifies Alito from a lifetime appointment to the Supreme Court. The job of a Supreme Court justice is unique within the judiciary. Among other things, the constraints created by legal precedent are far less significant at the Supreme Court. Political agendas at the expense of the Constitution and laws of this country are dangerous at all levels of our judicial system, but they present their most acute challenges at the highest court in the land.

II. The Alito Agenda

There is no need to engage in guesswork about whether Samuel Alito has a political agenda or what it entails. In 1985 Alito applied and was hired for the position of deputy assistant attorney general for the Reagan administration. During the application process, Alito was asked to provide his qualifications for the position. In his application essay he chose to focus almost exclusively on his consistently conservative political beliefs and how advancing those beliefs motivated him to enter the legal profession. Alito stated: “I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this administration.”

In describing his political agenda, Alito explained that his interest in the law is animated largely by his strong commitment to conservative causes. For example, he wrote: “In college I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause and reapportionment.” These areas of interest closely track conservative political attacks on the rights of criminal defendants, the separation of church and state — which is critically important to those who do not share majority religious beliefs — and jurisprudence built around the principle commonly known as one person, one vote. Alito also trumpeted his strong allegiance to “free enterprise” and “the legitimacy of a government role in protecting traditional values.” This political agenda stands independent of any reasonable understanding of the Constitution.

The steadfast conservative political ideology that Alito developed as a young man continued to be his primary focus while serving in the Solicitor General’s office during the Reagan administration. He stated: “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.”

Alito also emphasized that he “disagreed strenuously” with what he characterized as the judiciary’s “usurpation” of governmental decision-making authority. However, Lambda Legal’s analysis of Alito’s decisions reveals that this stated commitment to “judicial restraint” is in fact in service of his conservative political agenda. But “judicial restraint” cedes to what his allies disparage as “judicial activism” when neccesary to reach the desired end.

Information about Alito’s agenda is not limited to his 1985 Department of Justice (DOJ) job application. In addition, irrefutable evidence has emerged indicating that Alito pursued this agenda while working for the federal government by developing and pursuing a legal strategy designed to result in the overturning of Roe v. Wade. As an assistant to the solicitor general, Alito authored a 17-page document setting forth his proposed strategy to persuade the Supreme Court to restrict and eventually overturn Roe. He also volunteered to help write the administration’s brief in Thornburg v. American College of Obstetricians and Gynecologists and, according to former colleagues, he was the attorney who did the thinking and legal research and analysis in this brief that argued that Roe should be overturned.

Samuel Alito’s clear political agenda provides a backdrop that sheds important light on his approach to the claims before him as a judge for the Third Circuit Court of Appeals. Among other things, this agenda is striking in its lack of empathy for the everyday person. Having an appreciation of the human condition of all Americans, regardless of their stature or affinity with majoritarian perspectives and values, is part of what helps Supreme Court justices enforce the promises of the Constitution and our civil rights laws with an equal hand for all who come before the Court. Alito lacks this empathy. In place of it he wields a hardened political agenda and advances that agenda through clever legal craftsmanship.

III. Legal Craftsmanship in Support of the Alito Agenda

What emerges from Lambda Legal’s careful analysis of Alito’s judicial record is the persistent use of strong legal craftsmanship and treatment of precedent to serve his political agenda. At root, Alito consistently has deployed a sophisticated, results-oriented approach. His judicial reasoning does not rely on ideological argument or vitriol. Instead, he skillfully uses traditional legal analysis, and deploys procedure and precedent to reach conclusions that are consistent with, and driven by, his political ideology.

Employment Law

The area of employment law provides an interesting first case study. In this area, Alito has skillfully engaged in procedural hair-splitting that disadvantages employee plaintiffs in disregard of the purposes of civil rights laws enacted by Congress. Alito’s dissent in Bray v. Mariott Hotels is illuminating. In Bray, a hotel employee who was denied a promotion filed a lawsuit alleging illegal race discrimination in violation of Title VII of the Civil Rights Act of 1964. The Third Circuit majority ruled that the plaintiff had established the essential elements of a case of race discrimination and therefore was entitled to go to trial by a jury. Alito dissented, arguing for an evidentiary burden on employee plaintiffs that is almost impossible to meet. In fact, the majority strongly criticized Alito’s approach, pointing out that “Title VII would be eviscerated if our analysis were to halt where the dissent suggests.”

Alito’s approach in Bray reflects a pattern. Sheridan v. E.I. DuPont de Nemours and Co. involved a sex-discrimination claim brought by a hotel employee. Ten of the 11 members of the Third Circuit, sitting en banc, agreed that the employee had the right to take her case to trial because she first established all required elements of her affirmative case and then produced evidence to rebut the employer’s argument that it acted legitimately. Alito was the sole dissenter. The majority criticized Alito’s approach as one that would invite “confusion and uncertainty” in its imposition of additional burdens on empoloyees. Here again, Alito sought to use the nuances of procedure to place an employee plaintiff at a severe disadvantage in contravention of Title VII’s goal of combating workplace discrimination.

Alito’s lack of deference to Congress on Title VII is instructive. On its face, it stands in stark contrast to his stated opposition to “the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate.” But what has become apparent through Lambda Legal’s analysis of Alito’s judicial track record is that this constrained version of judicial power is in service of his conservative political philosophy, rather than the other way around. Thus, when deference to Congress and the Executive Branch at the expense of the courts serves Alito’s agenda of support for “free enterprise” and disregard for individual and civil rights, that deference is invoked. When it does not, it is ignored.

Alito’s results-oriented approach is presaged not only by the political agenda he outlined in his DOJ job application, but also by a 1985 DOJ opinion on HIV and the federal Rehabilitation Act of 1973. The opinion, which then-Deputy Assistant Attorney General Alito took public credit for helping to author, took the very controversial position that, under the Rehabilitation Act, an employer legally could fire a person with AIDS because of fear of contagion, regardless of whether the fear was reasonable or not. In the face of public criticism of the opinion, Alito claimed “we had to interpret the law as it stands.” In fact, precedent did not dictate the opinion’s analysis. A federal appellate court had just ruled the opposite, and the case was pending before the Supreme Court. Instead, the evidence indicates that the opinion was agenda-driven and designed to influence courts so that they would create precedent consistent with the DOJ analysis where none previously existed. The position taken by Alito’s DOJ opinion later was unequivocally rejected by the Supreme Court in School Board of Nassau County v. Arline.

Reproductive Health

Alito’s results-oriented approach is also on display in his analysis of a woman’s liberty interest in controlling choices about her reproductive health. As discussed above, while a government lawyer, Alito developed and disseminated a legal strategy that he hoped would result in the eventual overturning of Roe v. Wade. Alito seemingly tried to seize the opportunity to advance that strategy that was presented by Planned Parenthood of Southeastern Pennsylvania v. Casey. In that case, the Third Circuit was asked to pass on the constitutionality of a variety of new restrictions enacted by the state’s legislature, on a woman’s right to choose an abortion. One new restriction was the requirement that a woman notify her spouse before obtaining an abortion. The majority in the case found that the spousal notification requirement violated the Constitution. While claiming to be guided by existing precedent, Alito alone found that the notification requirement survived constitutional scrutiny. His opinion in the case argues for a less stringent “rational basis standard” of review for abortion-related cases. Alito’s position was rejected when the Supreme Court ultimately decided the Casey case; Justice Harry Blackmun later explained that Alito’s approach would make it impossible to challenge restrictions on access to abortion.

Relationship Rights

Alito has demonstrated that he is extraordinarily unsympathetic to protections for unmarried people and couples who are denied the right to marry due to unjust laws. In Chen v. Ashcroft, a young woman in China became pregnant, unsuccessfully attempted to get married and resisted the Chinese government’s pressure to abort her fetus. The woman and her male partner could not marry because they were both 19 years old, and the minimum age for men to marry in China is 25. The woman was ultimately forced to undergo an abortion during her eighth month of pregnancy.

When her partner applied for political asylum in the United States, Alito wrote the resulting opinion for the Third Circuit. Even though husbands of women forced by the Chinese government to undergo abortions routinely qualify for asylum in the United States, Alito reasoned that an unmarried partner does not because he does not suffer “persecution” as required by U.S. asylum law. Clearly reflecting his political agenda to support “the legitimacy of a government role in protecting traditional values,” Alito posited that it was “rational” to deny protection simply because a couple was unmarried, even under these extraordinary circumstances.

Federalism

In the area of federalism and Congress’s power to enact legislation to address important national concerns, Alito again appears to take a results-oriented approach — this time in service of his political agenda in favor of “limited government.” In United States v. Rybar, the Third Circuit joined six other circuits in ruling that a federal law banning the sale of outlawed machine guns was a constitutional exercise of Congress’ power under the Commerce Clause. Alito dissented. He argued that the Supreme Court’s then-recent decision in United States v. Lopez, which struck down Congress’ ban on guns in school zones, made it clear that Congress did not have the power to regulate the sale of guns. Alito would have extended Lopez — which invalidated an act of Congress on Commerce Clause grounds for the first time in nearly 60 years — and in the process gone even further than the current Supreme Court in weakening Congress’s power to enact legislation to address national issues.

This approach to federalism is inconsistent with Alito’s stated commitment to judicial restraint. Indeed, the majority in Rybar criticized Alito’s approach because it “runs counter to the deference that the judiciary owes to its two coordinate branches of government ...” But since Alito’s support for judicial restraint appears to be little more than a means of facilitating rulings that further his conservative political agenda, it should not be surprising that judicial restraint recedes when it stands in the way of a decision in favor of “limited government” or in opposition to individual rights. As the Leadership Conference on Civil Rights has observed, Alito’s approach to federalism “raises serious concerns about whether he will uphold major and historically effective pieces of civil rights infrastructure ... and whether he will hold a restrictive view of Congress’ power to move the country forward with additional civil rights laws.”

Church-State Separation

Church-state separation is still another area where Alito’s approach has tracked his political agenda — this time in his professed opposition to Supreme Court precedent in interpreting the Establishment Clause and his strong belief in the government’s role in protecting “traditional values.” Here again, Lambda Legal’s analysis of Alito’s opinions reveals a propensity to construe the Establishment Clause very narrowly to reach the result that is most deferential to majority religious views. In ACLU of New Jersey v. Township of Wall, Alito used procedural analysis to thwart a taxpayer challenge to a township’s religious holiday display — reasoning that the plaintiffs did not have taxpayer standing because the display was donated and any public employee time to support the display was minimal. In ACLU of New Jersey v. Schundler, Alito wrote an opinion holding that a city that originally created a holiday display with a crèche and a menorah, and then added Frosty the Snowman and other secular symbols when challenged, complied with its Establishment Clause obligations. And in Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Township School District, Alito wrote an opinion for the court siding against a public school that invoked the Establishment Clause to bar a Christian evangelist group from using teachers to distribute the group’s flyers.