Within hours of President Bush's nomination of Third US Circuit Court of Appeals judge Samuel A. Alito Jr. to a seat on the Supreme Court, conservatives, liberals, and the media began spouting all-too-predictable bromides—as though prepared for a long-awaited, theatrical, pre-scripted WWF smackdown. Yet even a cursory look at Alito's record on the bench suggests that he deserves a more serious vetting than our polarized political culture cares to acknowledge.
Not surprisingly, everyone immediately shined the political spotlight on Alito's record on Roe v. Wade. In Planned Parenthood v. Casey (1991), the Third Circuit was faced with restrictions enacted by the Pennsylvania legislature on a woman's right to choose. The circuit court decided that the provisions were constitutional, except for one regarding spousal notification. Alito dissented with respect to that provision, which required the pregnant woman to confer with her husband before getting an abortion. A husband, argued Alito, has a real interest in whether the child should be born, stressing that as long as the husband did not have veto authority, the consultation requirement was constitutional. The Supreme Court disagreed with him, invalidating the provision by a close 5-4 vote. Of course, as an intermediate-court judge, it was not in Alito's power to ignore Roe's basic doctrine that the right to choose was constitutionally protected. Some lower-court judges, however, even while obeying Roe—as they must do—go out of their way to grouse about it. Alito did not: he did not show the kind of hostility other potential Bush nominees have shown.
There has also been criticism of Alito's dissent in Homar v. Gilbert, a 1996 case in which he argued that it did not violate the rights of a police officer to suspend him without pay immediately after his arrest on drug charges, without a hearing. The Supreme Court later agreed with Alito, concluding that the fact that the officer had already been arrested demonstrated that there was a legal basis for the suspension.
As for that other third rail in highly politicized constitutional issues, separation of church and state, in ACLU v. Schundler (1999) Alito wrote the majority Third Circuit opinion upholding the city's annual holiday display that included the usual crèche and menorah, Kwanzaa symbolism, more-secular winter-holiday fare (Frosty the Snowman and Santa Claus), and a banner promoting diversity. Many civil libertarians have come to see these seasonal debates as relatively trivial. And Alito's opinion was not out of step with the somewhat muddled line the Supreme Court has drawn with regard to public expressions of religious symbolism.
Almost lost in the initial kabuki-style commentary is the fact that, to his credit, Alito has written opinions decidedly friendly to civil liberties. In 2004, he authored Shore Regional High School Board of Education v. P.S. , which held that a school district violated the Disabilities Education Act by failing to protect a student from intense bullying on the basis of perceived sexual orientation and lack of athletic ability. Alito's majority opinion in the 2003 case of Williams v. Price argued that state courts violated the constitutional rights of a black state prisoner who presented evidence that a juror had made derogatory remarks about blacks in a courthouse incident occurring just after the end of the trial. And his 1999 decision in Fraternal Order of Police v. City of Newark concluded that a police-department policy banning officers from wearing beards violated the First Amendment's free-exercise-of-religion clause.
Perhaps Alito's crowning free-speech achievement was his groundbreaking opinion in a 2001 case challenging the constitutionality, under the First Amendment, of a so-called "anti-harassment" policy adopted by a school district in Pennsylvania. In Saxe v. State College Area School District, Alito wrote that even though school authorities claimed to be squelching "harassment" rather than speech, the "harassment" that they targeted was, in fact, constitutionally protected speech. Alito pointed out that school administrators could not escape the First Amendment simply by defining as "harassment" speech that was merely "unwelcome" or "offensive," including, as the school district's code provided, "unsolicited derogatory remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name calling, graffiti, innuendo, [or] gestures." (Disclosure: Representing the Foundation for Individual Rights in Education, on whose Board of Directors I serve, I advised the legal team representing Saxe.)
These cases demonstrate Alito's sensitivity to issues of liberty, a sensitivity in short supply among Bush's favored nominees. Beyond that, the pundits and pols have not even begun to question what is perhaps the most serious liberty-related issue of our time: the president's claim to unfettered authority to conduct a "war on terror" that permits arbitrary arrest and detention, torture, and other horrors. That inquiry should proceed, too, and with great care.