Alito’s strict constructionism needs scrutiny

Reaction to the nomination of Samuel Alito LAW ’75 to the Supreme Court has been overwhelmingly partisan, but both sides seem to agree on one point: Alito’s conservatism. Liberal groups have expressed outrage at the nomination of a judge whom they consider an extremist, while those on the religious right who were concerned Harriet Miers might be too moderate have quickly embraced the Alito nomination.

Given the strength of the rhetoric on Alito’s conservatism, there is surprisingly little in his record that can be interpreted as radical. Alito’s decisions reflect conservative leanings, but primarily a strict adherence to precedent, and his confirmation hearings must explore this aspect of his judicial philosophy in depth.

At Yale, Alito’s classmates remember him as relatively conservative in dress and demeanor, but never vocal about partisan politics — a far cry from the outspoken Justice Antonin Scalia, to whom Alito has frequently been compared.

Since graduation, Alito’s experience in the Justice Department, as a U.S. attorney and as an Appeals Court judge has left little doubt regarding his judicial qualifications. And though he has ruled on a number of thorny issues, none of his decisions stand out as strikingly partisan. With regard to the most provocative social issues, his beliefs have not been pinned down — on reproductive rights, his rulings have straddled the fence, and the issue of same-sex marriage never came before him.

Alito’s most controversial ruling was his dissent in the case of Planned Parenthood v. Casey, in which he argued to uphold a Pennsylvania law that required married women seeking abortions to inform their husbands. This opinion provoked outrage from abortion rights groups, which raised legitimate concerns about the law’s potential to restrict the reproductive freedom of women with abusive spouses. Indeed, the Supreme Court later voted by a five-to-four margin that the law was unconstitutional.

Still, even this decision does not provide solid grounds to infer that Alito would oppose abortion. While his opinion seemed rooted in a traditional view of marriage, the dissent also applied the framework of Roe v. Wade, arguing the law did not impose an undue burden on women seeking abortions. In fact, a number of other Alito rulings — in particular his decision to strike down a ban on late-term abortions — show a respect for the Roe v. Wade precedent.

Ultimately, what is significant in the abortion debate is not Alito’s personal stance on the issue but rather how he might rule within the context of precedent. On this and other issues, the question ultimately raised is whether Alito is more committed to the notion of precedent or a strict interpretation of the Constitution.

Was Alito’s consistent deference to precedent in the past a product of his respect for the principle of stare decisis, or rather a recognition of his position below the Supreme Court? As Senate confirmation hearings get underway, answering this question will be the key to finding out where Alito really stands.

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