Justice Samuel Alito

  • March 19, 2013
    Guest Post

    by Spencer Overton, a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos.This piece is crossposted at The Huffington Post.

    I attended yesterday’s U.S. Supreme Court oral argument in the Arizona voter registration case.  The argument went well generally, but Justice Alito suggested the Justices would create a “crazy” double standard by requiring that Arizona election officials accept the federal registration form. 

    Alito’s concerns are unwarranted.  Arizona chose to create two standards when it chose to add special “proof of citizenship” to register. 

    The National Voter Registration Act requires that all states “accept and use” a single, uniform voter registration form for federal elections (states can also still use their own registration forms). 

    The Federal Form requires that prospective voters check a box and sign an affirmation that they are U.S. citizens under penalty of perjury. 

    Arizona, however, adopted a state law requiring “satisfactory proof” of U.S. citizenship to register, such as a birth certificate, U.S. passport, or state driver’s license that shows citizenship. As a result, Arizona rejected over 31,000 registrations that lacked its “proof of citizenship” -- including Federal Forms -- even though Arizona concedes it has no evidence that any of these individuals were non-citizens.

    My take is that Arizona must accept all Federal Forms that comply with the citizenship affirmation rules set by Congress. The federal Act was designed to expand participation in federal elections by streamlining the registration process with a simple, uniform Federal Form that prevents states from piling on additional hurdles to register.  Indeed, as Justice Sotomayor mentioned, Congress explicitly rejected an amendment that would have allowed states to require “documentary evidence” of U.S. citizenship. 

     

  • November 19, 2012

    by Jeremy Leaming

    It’s not where he said it; it’s what Supreme Court Justice Samuel Alito had to say about the ruling in Citizens United and the role of the federal government that warrants any kind of notice.

    Alito has long been defensive of the high court’s handiwork in a decision that gave more power to corporate interests to spend their expenditures on politicking. That 2010 high court opinion in Citizens United v. FEC overturned longstanding court precedent allowing for some regulation of campaign financing by corporations. During the 2010 State of the Union address, President Obama blasted the Court for trampling that precedent and added that it would become a boon for special interests, including foreign ones, and Alito was caught on camera uttering, “Not true.”

    Recently the severely conservative judge (he was far right as a judge on the U.S. Court of Appeals for the Third Circuit) again sounded a defensive note on Citizens United before the Federalist Society’s 2012 National Lawyers Convention. Alito, as reported by the Associated Press, said all kinds of newspapers and television news and opinion broadcasts, many owned by vast corporate interests, sound off on and provide endorsements of candidates.

    “The question is whether speech that goes to the very heart of government should be limited to certain preferred corporations; namely media corporations,” Alito said during a keynote address at the group’s 30th Anniversary Gala Dinner on Nov. 15. “Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech.”

    Beyond defending the opinion, and shooting a few asides at critics of the opinion, Alito sounded what is a frequent Tea Party or rightwing talking point about ever-expanding powers of the federal government, saying that the views advanced by the administration in several cases before the high court revealed a vision of a society dominated by a towering federal government.

  • May 31, 2012

    by Jeremy Leaming

    At some point perhaps soon the U.S. Supreme Court’s conservative wing will have to reckon with some of its sweeping assertions in its controversial 2010 Citizens United v. FEC majority opinion.

    Retired Supreme Court Justice John Paul Stevens in a methodical, thoughtful speech at the University of Arkansas Clinton School of Public Services detailed why he thinks some of the holding in Citizens United is due for reconsideration.

    Stevens’ former colleague Justice Samuel Alito mouthed “not true” during President Obama’s 2010 State of the Union address when the president said Citizens United could “open the floodgates for special interests – including foreign corporations – to spend without fault in our elections.”

    But the majority opinion, Stevens said “placed such heavy emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.’”

    “Indeed,” Stevens continued, “the opinion expressly stated, ‘We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.’”

    Stevens said:

    Given the fact that the basic proposition that undergirded the majority’s analysis is that the First Amendment does not permit the regulation of speech – or of expenditures supporting speech – to be based on the identity of the speaker or his patron, it is easy to understand why the president would not have understood that ambiguous response to foreclose First Amendment protection for propaganda financed by foreign entities.

    But Justice Alito’s reaction does persuade me that in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion. For his statement that it is ‘not true’ that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises that requires the Court to address the issue in a full opinion.

    The former justice, the third longest serving justice on the high court, also pointed to an opinion, one he joined, that followed Citizens United. In Holder v. Humanitarian Law Project, the majority held that Congress can bar material support of terrorist groups, even if that support is advice on how to conduct peaceful protests.

  • March 30, 2012

    by Jeremy Leaming

    Before this week’s marathon oral arguments in the case challenging health care reform, many legal scholars, had strongly argued that the challengers’ arguments did not have a serious chance of surviving Supreme Court scrutiny.

    Primarily the reasoning was based on high court precedent in favor of a broad reading of Congress’ power to regulate commerce and to tax and spend for the general welfare.

    But those perceptions have been rocked following three lengthy days of oral argument, in which Justices Antonin Scalia and Samuel Alito appeared to have bought the challengers’ arguments against the minimum coverage provision, and, at times, revealed utter callousness toward national lawmakers’ attempt to reform a terribly inefficient and exclusive health care system that has left tens of millions uninsured.

    Moreover as The New York Times columnist Paul Krugman noted, several of the justices appeared utterly or willfully ignorant of how “insurance works.” Krugman said Scalia’s comparison of purchasing health care insurance to buying broccoli “horrified health care experts all across America because health insurance is nothing like broccoli.”

    “Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick – which what happens in the absence of a mandate – the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those  who remain. As a result, unregulated health insurance basically doesn’t work, and never has,” Krugman wrote.

    Walter Dellinger, former Solicitor General, at an ACS briefing on the oral arguments in HHS v. Florida, said it appeared, based mostly on their questions that three justices look ready to strike the minimum coverage provisions. Justice Samuel Alito’s questions were almost as hostile as Scalia’s and most, including Dellinger, believe Justice Clarence Thomas will vote to invalidate the law’s integral provision.

    But Dellinger (pictured) is still holding out hope that two more justices will not join those three in killing health care reform.

    “If there were five,” he said, “I would be shocked, because I think it would take us back to the jurisprudence of the 1920s. I think it would be the most stunning and indefensible judicial decision in half a century. It would be paired with Bush v. Gore in the law books forever.”

  • February 21, 2012

    by Jeremy Leaming

    The U.S. Supreme Court’s conservative majority is seemingly preparing to provide a potentially fatal blow to affirmative action policy. After the high court announced earlier today that it would consider Fisher v. Texas, a white college student’s challenge to the University of Texas’ affirmative action policy, The Huffington Post’s Mike Sacks wrote, that affirmative action was heading back to the high court “and this time its prospects for survival are poorer than ever.”

    As Sacks notes, in 2003 the Supreme Court upheld by a 5-4 vote in Grutter v. Bollinger that the University of Michigan law school’s affirmative action program was constitutional. The law school’s policy, in part, was based on a longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like, African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in a meaningful manner.”

    The lower federal court in the Grutter case found Michigan’s use of race as a factor in admissions was unconstitutional. The federal appeals court, however, overruled that opinion.

    Retired Supreme Court Justice Sandra Day O’Connor wrote the majority opinion in Grutter. She noted that part of the reason Michigan used race as a factor in higher education admissions policies was to create a richer educational experience. She said the majority would defer to the school’s “educational mission.” O’Connor noted that the briefs supporting the school “substantiated” the “educational benefits” of its affirmative action policy. Those friend-of-the-court briefs, O’Connor wrote included “expert studies and reports entered into evidence at trial,” and “numerous studies show[ing] that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’”

    O’Connor, moreover, said the law school had not employed a rigid quota system in trying to achieve its goal of bringing underrepresented minorities into the fold. “The Law School’s current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race,” she wrote.