Wow, a Nominee With a Paper Trail to Debate!


I haven't got a verdict one way or another on Alito yet, but ThinkProgress' roundup of "facts" about the nominee's views is less than impressive. (Addendum: I see the Center for American Progress is pushing the same list.) Let's consider some of their claims.

ALITO WOULD OVERTURN ROE V. WADE In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980's. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito's view, voting to reaffirm Roe v. Wade.

As blogger Patterico explains in some detail, it's awfully hard to justify that initial claim on the basis of Alito's dissent in the case they're talking about. His opinion seemed to be that there were enough exceptions (e.g. the spouse isn't the child's father; the woman worries the spouse will become violent) that a spousal-notification requirement for abortion—whether or not it's a good idea—didn't constitute an unconstitutional undue burden on the right. Now, I have no idea whether Alito wants to overturn Roe, but it seems an awful stretch to conclude that he would on the basis of that opinion. Next…

ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by "immuniz[ing] an employer from the reach of Title VII if the employer's belief that it had selected the 'best' candidate was the result of conscious racial bias."

That's what the majority "explained," but it's sure not the impression you get reading the opinion. Basically, it looks like a court had to decide, inter alia, whether a hotel had failed to promote the plaintiff becaue of racial prejudice. And Alito's argument is that you might think the hotel's stated reasons for promoting someone else are weak, but that this isn't enough to show they were pretextual. I don't know enough about the fact pattern in the particular case to take sides in the instance, but again, the claim that Alito wants to "allow race based discrimination" seems a far cry from what I'm seeing in that dissent. (Requisite libertarian disclaimer: If some employer decides it doesn't want to hire people named Sanchez, I think it ought to be able to legally—though I'd hope for it to be swiftly punished by public opinion. All I'm arguing in this post is what it's reasonable to infer from Alito's opinions, not what's good policy.)

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito's dissent was so restrictive that "few if any…cases would survive summary judgment."

I can't even find the opinion online in this case, but again, all we get here is a short excerpt of how the majority chose to characterize Alito's dissent. From what I can see, the case involved a question of whether a disabled medical student had provided her school with adequate advance notification of the kinds of accomodation her disability would require in the classroom. Again, it's hard to say more without seeing the opinions, but I can imagine quite a range of disagreements over what counts as adequate notification that fall short of constituting a disagreement over whether the law should "allow disability-based discrimination."

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) "guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." The 2003 Supreme Court ruling upholding FMLA [Nevada v. Hibbs, 2003] essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law.

I was faintly hoping the case to which they refer might be a Commerce Clause decision in the Lopez vein—but sadly, no. It's an Eleventh Amendment sovereign immunity case, and has very little to do with the propriety of FMLA per se. So again, this is something of a red herring: Alito's views of Congressional power under the Fourteenth Amendment to abrogate state immunity under the Eleventh are apparently such that he would have held FMLA inapplicable to the states. I don't think I'd hold it against him if it were true that Alito "would strike down the Family and Medical Leave Act," but the opinion doesn't seem to support the claim.

ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home.

Getting warmer, but looking over the opinion, it's not quite as bad as they're making it sound here either. The disagreement here isn't over whether carrying out unauthorized strips searches as such violates the Fourth Amendment—if a judge thought that were permitted, it would surely be a dealbreaker. Instead, the opinions reveal a dispute over whether the officers had a good-faith belief that their request to search all occupants at the premises had been incorporated into the warrant. On the basis of my skim, I'm inclined to prefer the majority's take, but Alito's dissent isn't as awful or crazy as the precis above would suggest. Finally:

ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito's disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito's dissent "guts the statutory standard" and "ignores our precedent." In Ki Se Lee v. Ashcroft, the majority stated Alito's opinion contradicted "well-recognized rules of statutory construction."

Having found the Dia decision, I'm not all that surprised, in light of the pattern we've seen above, that the "hostile toward immigrants" claim seems, again, like a huge reach. Alito authored a partial-dissent there taking issue with the standard for evaluating a lower-level immigration judge's determination of an asylum petitioner's credibility. I can guarantee I'm out of my depth in evaluating this one on the substantive merits, but again, the bolded claim seems, at the very least, like an extraordinarily loose inference.

Addendum: Kos is recycling the same talking points, with some equally misleading commentary. Apparently, the FMLA decision tells us that "For Alito, workers shouldn't be able to take 12 weeks of unpaid leave to take care of newborns or loved ones." And the Doe v. Groody opinion reveals Alito's view that "Not only is [sic] strip searches of 10-year-old girls okay, but of wives as well since they are all merely that man's chattel." In a lot of ways, the first complaint is parallel to the silly "why do you hate America?" rhetoric folks at Daily Kos rightly chafe at. You think the Fourth Amendment proscribes certain anti-terror measures? You must be pro-terrorist! You think the Eleventh Amendment bars applying FMLA to states? You must be anti-people-taking-care-of-sick-relatives! The thing about wives as chattel is too ludicrously disconnected from anything in the decision—which, again, I'm inclined to disagree with—to take seriously.