Scalito’s Greatest Hits

Brian Cook

Just how freaky is Samuel Alito? In 1991, he wrote a dissent in which he upheld the provision of a Pennsylvania law that would have required a woman to notify her spouse before obtaining an abortion. (A Supreme Court majority later disagreed with Alito.) 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.” 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.” [Bray v. Marriott Hotels, 1997] 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 2000 decision by Alito which found that Congress exceeded its power in passing the law. [Chittister v. Department of Community and Economic Development, 2000] 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.” [Dia v. Ashcroft, 2003; Ki Se Lee v. Ashcroft, 2004] In other rulings, Alito wrote for the majority in 1997 in finding that Jersey City officials did not violate the Constitution with a holiday display that included a creche, a menorah and secular symbols of the Christmas season. In 1999, he and his colleagues found that a Newark policy that allowed medical, but not religious, exemptions to a ban on police officers having beards violated the First Amendment. Alito's conservative stripes are equally evident in criminal law. Lawrence Lustberg, a New Jersey criminal defense lawyer who has known Alito since 1981 and tried cases before him on the Third Circuit, describes him as "an activist conservative judge" who is tough on crime and narrowly construes prisoners' and criminals' rights. "He's very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a Rehnquist as a Scalia trait," Lustberg says. If this makes you sick, go visit Dr. Michael Berube and take a pill. ****This blog was actually written and researched by ITT Intern Extraordinaire Annie Anderson

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Brian Cook was an editor at In These Times from 2003 to 2009. He now works on the editorial staff of Playboy magazine.
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