Scalito’s Way: Supreme Court loses its swing - by Donnie Dobovich
Harriet Miers, finally offered up as a sacrificial virgin to the fire-breathing right, has gone up in smoke. The president weathered a disastrous week with aplomb, hurdling Miers’ smoldering husk, as well as the corpses of the 2,000^th American casualty in Iraq and “Scooter” Libby. Never one to let the sore of individual freedoms fester, Bush quickly nominated Third Circuit Court of Appeals judge Samuel Alito to fill Sandra Day O’Connor’s seat on the US Supreme Court.

Alito has what Miers so obviously lacked: judicial pedigree. Meaning he’ll actually get a hearing. It, too, promises to be incendiary, but this time it’s the American people and maybe the racier parts of the constitution that stand to get burned. According to People for the American Way, after graduating from Yale Law School in 1975, he served as a law clerk on the Third Circuit. He went on to serve as Assistant US Attorney for the District of New Jersey and later joined the Reagan Justice Department. Thereafter, he held posts as an Assistant to the US Solicitor General, Deputy Assistant US Attorney General and US Attorney for the District of New Jersey. His reign of caprice and terror as an appeals judge began following his nomination in 1990 by President George H.W. Bush.

Alito was one of three judges to hear a landmark case, Planned Parenthood of Southeastern Pennsylvania v. Case, in which the Third Circuit upheld all but one provision of an especially prohibitive state law regarding abortions. The court ruled that maintaining a 24-hour waiting period, requiring minors to obtain parental consent or a judicial bypass, and reporting requirements for abortion clinics and public disclosure of those reports was not unduly burdensome to women seeking an abortion.

The court struck down a provision requiring women to inform their spouses of their decision to seek an abortion except in rare circumstances. But Alito penned a dissenting opinion in favor of the stricken clause, arguing its opponents “failed to show even roughly how many of the women in this small group would actually be adversely affected,” as if a relatively small number were acceptable. He argued in furtherance of a father’s right to the fetus carried by his wife. One legal observer summarized the effect of the court’s decision thusly: “[F]or the first time since 1973, a Federal court of appeals has directly said that Roe v. Wade is no longer the law of the land.”

The US Supreme Court affirmed most of the Third Circuit opinion. More important Alito’s extreme interpretation found sympathy, perhaps presciently, among the most conservative justices, including Antonin Scalia. This shared judicial philosophy expressed in Alito’s opinions has earned him the nickname “Scalito” among attorneys who have argued before the Third Circuit. That moniker, although a seemingly reasonable portmanteau of “Scalia” and “Alito,” has been characterized by Republican strategists as an ethnic slur. Personally, we feel it has more of a Latino flavor. A similarly disingenuous accusation is that those who would call Alito a fascist do so out of a bigoted reference to Mussolini, as if Italy was the European nation people think of first when they hear that word. Nevertheless, many have been quick to defend the nominee from perceived slights, even though Alito himself has been loath to defend anybody from almost any form of bigotry.

Alito’s dissenting opinions, and his particularly unsympathetic attitude toward women and minority plaintiffs, stand out on a court already noted for its jurisprudential conservatism.

In the discrimination case Glass v. Philadelphia Electric Company, Alito disagreed with the majority. He authored a decision arguing, incredibly, that allowing the plaintiff to rebut accusations of poor work performance by demonstrating he was a victim of racial discrimination would constitute “substantial unfair prejudice.” Isn’t that what trials and juries are for?

Disagreeing with the majority in another case, Alito anticipated a proliferation of illegitimate anti-discrimination actions. He wrote ominously that “What we end up doing…is converting anti-discrimination law into a ‘conditions of employment’ law…allowing disgruntled employees to impose the costs of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly.” This, he said, is “an unwarranted extension of the anti-discrimination laws.”

Alito, to his credit, has taken a stand in favor of time-honored traditions. In Riley v. Taylor, for example, he argued in favor of the rights of all-white juries to judge their duskier peers. Riley, a black defendant, had been convicted and sentenced to death following a trial in which all potential black jurors were eliminated by peremptory challenges. On rehearing, the Third Circuit reversed Alito’s initial majority ruling against Riley. Alito’s distress at this concession to fair trial fanatics and affront to white pride was palpable. Alito contended, “statistical evidence [demonstrating the habitual exclusion] of black jurors from juries in capital cases was comparable to an analysis attempting to explain why a disproportionate number of recent U.S Presidents have been left-handed.”

With pearls of wisdom like that to his credit, Alito should be thankful “acid test” is only a turn of phrase.

If Alito is confirmed, as is probable, it will be the end of Roe v. Wade, and the beginning of the end for civil rights and industry regulation. There will be no ‘swing vote’ left, simply a strong 5-4 majority of religious, business-friendly conservatives. What it won’t be is the end of the recently invented, but widely dreaded, scourge of “activist judges.” In fact, according to a July New York Times report that measured “judicial activism” by the number of times a justice struck down laws as unconstitutional—“legislating from the bench” as it were—the five conservative Supreme Court justices (including Rehnquist) top the list, with Thomas at #1 and Scalia third, while the four liberals come in last, ending with Ginsburg and Breyer.

Of course, this doesn’t matter to conservatives, because all this talk of activists and “originalists” is just code for what they can’t say, but hold in their hearts: that this is a war between atheist commies and decent god-fearing patriots. The constitution, what with its annoying checks and balances, is the last thing on their minds.