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Slate's Jurisprudence: Alito's Hot-Button Issues


The confirmation battle over President Bush's new Supreme Court nominee, Samuel Alito, is going to be a bruising one. Yesterday's polite jokes comparing him to Antonin Scalia are gone. Advocacy groups on both sides are gearing up the political war rooms they prepared over the summer and then did not use for the earlier nominations of John Roberts and Harriet Miers. Joining us for a preview of the big issues in the coming fight is Dahlia Lithwick, legal analyst for the online magazine Slate and for DAY TO DAY.

Dahlia, yesterday, we talked a bit about his views on abortion. What more have you been able to find?


Well, it turns out that legal thinkers are now questioning whether Alito is quite as sure a thing to reverse Roe v. Wade as they initially thought. Yesterday, we discussed the way in which he was a key vote in the case of Casey vs. Planned Parenthood that went on to become the seminal Supreme Court reaffirming the central holding in Roe v. Wade. Alito's position when he was on the court of appeals was that a Pennsylvania law requiring women to notify their husbands before getting an abortion was perfectly constitutional. In the end, it turned out the Supreme Court did not agree with him. It looks as though then he has a much stricter standard for what he would find an undue burden in abortion cases. However, it's important to also note that in 2000 he did vote with the panel to strike down New Jersey's partial-birth abortion statute, finding it unconstitutional under Supreme Court precedent. That's important because it suggests that even though people are saying he's an activist, he was willing at the time to abide by stare decisis or the notion that settled law is settled law; you don't reverse it lightly.

ADAMS: Now it also sounds like Alito's views on gender and racial discrimination will be closely examined. What can you tell us about his rulings there?

LITHWICK: Well, Noah, we have a slew of cases in which he essentially tried to raise the barrier in either sex or race discrimination cases for plaintiffs to even get into court. So there's a famous 1996 sex discrimination case where he said the victims need to meet a higher standard of proof in order to even get in front of a judge; a similar case in 1997 involving sex discrimination where he said the plaintiff here does not have enough evidence to get into court. So in many ways, he was looking for the more restrictive use of the law to make it harder to bring these sorts of cases. And that's going to prove, I think, very inflammatory in the next couple of weeks.

ADAMS: And what about the separation of church and state? That could be an issue.

LITHWICK: It will be an issue. In some sense, it's already an issue. People are very, very much talking about the fact that Alito would be the fifth Catholic on the Supreme Court if confirmed. A couple of cases that people are looking at, a 2004 case in which he allowed a New Jersey Christian children's group to proselytize on public school grounds. There was the Christmas display case that he felt was constitutionally permissible even though there were overt religious symbols. So he's clearly been a fan of allowing greater entanglement between church and state in public plans.

ADAMS: You've been looking at the 15-year record of his appeals court judgments. What else have you seen that's interesting?

LITHWICK: Well, I think that one of the things that's going to prove to be a big, big issue was a very controversial dissent he authored in 1986 in a case about whether Congress had the power to regulate gun sales. He said, `No, not only do they not have the power to regulate gun sales, they don't even have the power to regulate machine gun sales and possession.' And that was a statement about congressional power, about the reach of the commerce clause that really, I think, sent up a flare to the political left because we have to remember Congress' power to regulate all sorts of things, including the environment and gender and race rights, really turn on the notion that they involve interstate commerce. When Alito takes a position that guns do not involve interstate commerce, that's calling out a very, very loud signal that he may have very grave doubts about the reach of congressional powers in other areas as well.

ADAMS: Opinion and analysis from Dahlia Lithwick, who covers the courts for the online magazine Slate.

Thank you, Dahlia.

LITHWICK: My pleasure. Transcript provided by NPR, Copyright NPR.