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Who's the real Alito?

November 20, 2005|Vikram Amar | Vikram Amar is a law professor at UC Hastings College of the Law.

Judge samuel A. Alito Jr.'s 1985 application for a high-level Justice Department job not only offers a glimpse into his legal thinking, it also lays out the probable course of his confirmation hearings in January. Most revealing, it illuminates the nature of legal conservatism during the last few generations.

On his application, Alito identified himself as a lifelong conservative who was influenced by Barry Goldwater's 1964 presidential campaign. He wrote that he became interested in law while in college because he objected to numerous Warren court decisions.

Alito and his supporters contend that the application reveals only his personal views, and that his 15-year record as a judge proves that he can put aside such views when deciding cases.

But Alito stated in his application that "the Constitution does not protect a right to an abortion" and that Roe vs. Wade should be overturned -- a legal position he advanced with "satisfaction" on behalf of the Reagan administration because he "personally believe[d] very strongly" in it. A judge who thinks that abortion is morally wrong might be able to put aside this belief when judging a case. But it's hard to see how a judge's "personal" view on the legal meaning of the Constitution won't affect his judicial task of deciding what the Constitution means.

An executive-branch lawyer may not think he should worry about respect for judicial precedent the way a judge should. So, even in 1985, a Judge Alito might have had different views than lawyer Alito did. And 20 years have passed since Alito filled out the application, and he might today claim that both the world and his legal interpretations have changed.

Whether any of that will play during his Senate confirmation hearings is another matter. Asked to explain his written words, Alito might not be able to stonewall the way Judge John G. Roberts Jr. did during his hearings. Sen. Charles Schumer (D-N.Y.) has already said that some statements on the application could suggest that Alito has prejudged the continuing vitality of Roe vs. Wade, and thus he must discuss abortion rights to demonstrate his open-mindedness.

Schumer is correct to press Alito for his current views on abortion rights, but not because Alito has prejudged the issue. If the judge's 1985 statement improperly prejudges future abortion cases, so too would the writings of Justice Antonin Scalia in every Roe-related case he's heard since 1987, yet he continues to hear such cases. Alito should address the contents of his job application for the same reason he should talk about all his tentative constitutional views -- these are not personal feelings but legal opinions.

Much of what Alito wrote in 1985 no doubt shocks many people today. Perhaps most arresting is his disagreement with the Warren court's reapportionment rulings.

The court struck down legislative districts in which some voters (mostly in rural white areas) enjoyed a much greater electoral voice than others (in urban regions containing with many poor people and people of color).

These "one person, one vote" cases are as canonical in 2005 as is Brown vs. the Board of Education, and were even used by the Supreme Court in deciding Bush vs. Gore.

But in challenging these and other Warren court decisions, Alito simply shows what it meant to be a true conservative in the 1960s and 1970s. Conservatives openly attacked Brown 40 years ago. They sharply criticized the idea that judges should regulate redistricting. They hotly questioned the (now entrenched) notion that Bill of Rights' protections should also apply to the states. Today's conservatives aren't exactly eager to remind everyone what conservatism meant just one or two generations ago, and how they were often fighting on the wrong side of history.

But is today's conservatism still fighting those battles?

It's noteworthy that although Alito expressed disagreement with the Warren court's rulings on reapportionment, defendants' rights and the establishment clause, he didn't indicate a strong desire to mount a legal campaign to overturn them. Even by 1985, most conservatives had grudgingly come to accept, if not embrace, school desegregation; one person, one vote; Bill of Rights protections against the states; the requirement of Miranda warnings for criminal defendants, and even bans on heavy-handed school prayer.

Why? Maybe because society has internalized these major legal innovations and moved on. But conservative elites have drawn a line in the sand over Roe vs. Wade. It's the one legal innovation that they haven't caved on, perhaps because society has not internalized it.

For better or worse, what may be most revealing about Alito's 1985 job application is the way it shows how singularly important -- and singularly divisive -- abortion rights are in U.S. constitutional discourse.

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