Justice Alito

The Senate confirmed Supreme Court nominee Samuel Alito Jr. today by a margin of 58-42, placing him on the Supreme Court to replace moderate swing vote Sandra Day O'Connor. In practical terms, what does this mean for the Court?

Abortion

• The point: Even if Roberts and Alito both oppose Roe, prior precedents suggest that Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens would support the ruling 5-4 over the dissenting Roberts, Alito, Antonin Scalia, and Clarence Thomas.
• The counterpoint: Alito famously wrote an 1985 memo: "What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?" Mississippi is a good case study of mitigated effects: Regulated down to only a single abortion clinic in the entire state, the state legislature has recently passed a series of strict regulatory guidelines designed to prevent the clinic from performing second-trimester abortions, which would have the effect of outlawing the practice entirely throughout the state. Other restrictions, such as bans on late-term abortions, parental notification laws, spousal consent laws (which Alito has upheld as a federal judge in Planned Parenthood v. Casey), etc. can also be used to restrict abortion.
• What will probably happen: A slim majority of justices will allow heavy restrictions on, but not the outright banning of, abortion.

Disability Rights

• The point: In Caruso v. Blockbuster-Sony Music Entertainment Center, Alito held that the Americans with Disabilities Act may require wheelchair access to theaters--but it doesn't require the theaters to be set up in such a way as to allow those in wheelchairs to actually see anything.
• The counterpoint: Well, at least he was willing to uphold requirements mandating wheelchair access.
• What will probably happen: Hard to say. This could be a strict letter of the law vs. spirit of the law issue, or it could reflect a conservative activist philosophy.

Fourth Amendment

• The point: When officers, armed with a search warrant allowing them to search a suspected drug dealer's premises, strip-searched the suspect's wife and ten-year-old daughter, Alito did not believe that this was a violation of the woman and child's Fourth Amendment rights--even though no explicit authority was given to search the suspect's family. His ruling in the case, Doe v. Groody, earned him the nickname "strip search Sammy." He also held in United States v. Ward that courts may order HIV/AIDS testing of sexual assault victims without their consent.
• The counterpoint: Alito did at least acknowledge, in his ruling, that the strip searches were distasteful and should not have been performed. That he saw no Fourth Amendment violation in Ward is more troubling.
• What will probably happen: Too soon to say.

Gun Control

• The point: In United States v. Rybar, Alito held in a 1-2 dissent that the U.S. government did not have the authority to convict a man for possessing an illegal machine gun.
• The counterpoint: The machine gun was homemade, and the defendant never traveled with it across state lines. Alito's dissent did not oppose all regulation of machine guns--it was a jurisdictional issue, and not strictly a Second Amendment issue. The 9th Circuit Court of Appeals, regarded as the most liberal federal court in the country, validated his reasoning in United States v. Stewart.
• What will probably happen: Probably nothing drastic. Alito has done nothing to indicate that his views on firearm possession are out of the judicial mainstream. The Supreme Court has never struck down a law on strict Second Amendment grounds, and while it's possible that an increasingly conservative Court could change that tradition, it's not likely.

Racism and Equal Opportunity

• The point: In Pemberthy v. Beyer, Alito held that excluding all potential jurors who speak Spanish does not violate the Fourteenth Amendment--even if the defendant is Hispanic, and even if this removes all other Hispanics from the jury pool. In Riley v. Taylor, Alito held that all-white juries may sentence black defendants to death as long as the jury pools have not been illegally tampered with--even if the prosecution is consciously working to obtain an all-white jury. Alito also boasted in a 1985 job application that he opposed Warren Court rulings on reapportionment, presumably those that geographically arrange districts in such a way as to ensure that, whenever possible within the standards of equal population distribution, it is best to avoid having overwhelmingly white districts.
• The counterpoint: Prosecutors claimed in Beyer that allowing a situation where some jurors couild jurors to speak Spanish and not others meant that some had more direct access to testimony and other forms of evidence than others, unbalancing the jury pool. The Riley opinion seems to follow a very strict reading of the Fourteenth Amendment, which is something of a concern--as is Alito's opposition to reapportionment.
• What will probably happen: Although Alito famously stated during his confirmation hearings that "I am not any kind of bigot," it is clear that he's no Earl Warren, either. Depending on how Chief Justice Roberts feels about civil rights issues, some university affirmative action policies could be in danger.

Sexual Harassment

• The point: In D.R. v. Middle Bucks Area Test School, Alito ruled that teachers cannot be held responsible for allowing sexual harassment to take place in their classroom, under their watch, and even if they choose not to report it. In Robinson v. City of Pittsburgh, he held that employers who ignore reports of sexual harassment may not be sued for it unless they're directly responsible for supervising the offender, and that past histories of those accused of sexual harassment are not admissible--kind of the reverse of a rape shield law.
• The counterpoint: That he was reading the letter of the law very parsimoniously, which is the standard answer. Other than that, I don't see much of a mitigating factor here at this point, though a careful reading of the rulings may tell me more.
• What will probably happen: Even if his rulings are all based on narrow readings of the law, Alito is clearly no friend of sexual harassment lawsuits. But will a majority on the Court back him up on this issue? Probably not.

One mitigating factor about Alito that people are ignoring is the impact of Chief Justice John Roberts. Yes, if you look at Justice Alito as a replacement for the much less conservative Justice Sandra Day O'Connor, his confirmation results in a noticeably more conservative court. But if you look at him as a replacement for the more conservative Chief Justice William Rehnquist, and Chief Justice John Roberts as a replacement for Justice O'Connor, it's not a particularly big change and may, over time, even represent a small net shift to the left. The X-factor is clearly Chief Justice Roberts. And even Justice Alito may turn out to be less conservative than he initially appears. Justices John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy, and David Souter were all appointed by President Reagan or by President Bush's father--and all of them have turned out to be liberal or moderate justices. If President Bush's track record matches that of his predecessors, civil libertarians may have relatively little to fear from the Roberts Court.