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Alito Seen as Carrying the Torch of Reagan

January 31, 2006|David G. Savage | Times Staff Writer

WASHINGTON — Twenty-five years ago, President Reagan came to Washington with bold plans to move the Supreme Court to the right.

He and his lawyers wanted a high court that would uphold state laws that impose the death penalty, restrict abortion and allow a greater role for religion in public life. They favored property rights over environmental regulation, states' rights over broad federal authority and executive power over Congress and the federal courts.

Now, with the Senate about to confirm Judge Samuel A. Alito Jr., a second generation of Reagan disciples stands ready to fulfill the former president's vision for the court.

Senators voted 72 to 25 Monday to cut off debate and end a filibuster against Alito's confirmation, and are expected to approve him today as President Bush's second Supreme Court appointee.

Alito, like Chief Justice John G. Roberts Jr., was drawn to the conservative ethos of the Reagan administration in the 1980s. Both men worked in Reagan's Justice Department and as advocates for the administration before the Supreme Court.

This year, both were promoted for the high court by a network of former Reagan lawyers, including his onetime attorney general, Edwin M. Meese III, who hold influence with the Bush White House. And some of Reagan's former advisors see the elevation of Roberts and Alito as the culmination of a long drive to put Reagan's conservative stamp on the high court.

"It is a matter of enormous pride to see two of our colleagues become Supreme Court justices," said Charles J. Cooper, a Washington lawyer who hired Alito for a key Justice Department post in 1986. "The Reagan administration was very deliberate in trying to promote bright, ambitious young conservatives. And this is in many respects the fulfillment of that effort."

Despite the passage of time, the conservatives' agenda for the high court remains remarkably the same. They want a court that will uphold restrictions on abortion, permit religious displays such as the Ten Commandments on public property and give police and prosecutors a freer hand to enforce criminal laws.

Equally important is what the court does not do. Social conservatives are hopeful that the Roberts court will not interpret the Constitution in a way that would create a right to same-sex marriage or forbid the use of the words "under God" in the Pledge of Allegiance.

"We should look for a court with a lowered profile, a court that tries to resolve cases but one that does not discover new constitutional rights," said Pepperdine law professor Douglas W. Kmiec, another Reagan administration veteran who worked with Alito and Roberts.

If the Bush appointees plan to lead a sharp move to the right, it should be evident soon. This year, the court is facing cases that could result in cutbacks in federal environmental regulation, more restrictions on abortion and greater presidential control over "enemy combatants" without interference by the courts. One pending case tests whether the court will make it easier for state death row inmates to win new trials if DNA evidence casts doubt on their convictions.

But it is not clear that Roberts, 51, and Alito, 55, can form a solid conservative majority to make major changes in the law, even if they wish to do so.

They join a court with two Reagan-era conservatives, Justices Antonin Scalia, 69, and Clarence Thomas, 57. Scalia was appointed by Reagan in 1986. Although Thomas was appointed to the high court in 1991 by President George H.W. Bush, he first came into government during the Reagan administration.

Much depends on Justice Anthony M. Kennedy, 69. Reagan's final appointee, Kennedy has proven to be more of centrist than a reliable conservative.

Four justices -- John Paul Stevens, 85, David H. Souter, 66, Ruth Bader Ginsburg, 72, and Stephen G. Breyer, 67 -- form the court's liberal bloc. They vote regularly for the separation of church and state, against the regulation of abortion, in favor of affirmative action and usually for federal power over states' rights. They also have voted to limit the use of the death penalty. If Alito or Roberts finds common cause with them, it would be a major surprise.

The areas of law to watch are those where Kennedy shares the views of Scalia and Thomas. For example, all three say states have a "sovereign" status that shields them from being sued for violating some federal laws.

The court has said state employees who suffer discrimination because of age or disability cannot sue their employers, unlike other workers. This doctrine, if extended by future rulings, could sharply limit the rights of the more than 5 million employees of state agencies, state-run hospitals and state colleges and universities.

Roberts already has signaled that he too believes in the notion of state's "sovereign immunity." Alito could form a five-member majority to extend states' rights.

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