Who is Sam Alito?

October 31, 2005

Judge Alito was born in 1950 and educated at Princeton and Yale Law School. He was nominated by President George H. W. Bush to sit on the Third Circuit Court of Appeals in his home state of New Jersey. Prior to his appellate court judgeship, he served as clerk for Third Circuit Judge Leonard I. Garth, as Assistant to the Solicitor General (click here for the list of Alito's arguments before the Supreme Court as Assitant to the Solicitor General), as Deputy Assistant Attorney General, and as U.S. Attorney for the District of New Jersey.
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Alito has earned the nickname "Scalito" for an Italian American heritage and conservative jurisprudence akin to Justice Scalia's. Law.com evaluates the nickname:

In some ways, the Scalito moniker hits the mark. In his 13 years on the 3rd Circuit, Alito has earned his stripes as a strong and intelligent voice on the growing conservative wing of a court once considered among the country's most liberal. As with Scalia, lawyers say that Alito's vote is easy to predict in highly charged cases. But where the nickname misses is temperament, or what some might call personality. Personality-wise, on the bench and in person, Alito is no Scalia. Though he's a frequent dissenter and not at all afraid to disagree with his colleagues, Alito's opinions are usually devoid of passion. And his tone during oral arguments is probing but always polite.

On Reproductive and Women's Right Judge Alito was the lone dissenter in the Third Ciruit's decision in Planned Parenthood v. Casey, which struck down a Pennsylanvia statute that placed unconstitutional burdens such as mandatory husband notifications on women seeking to terminate pregnancies. The Supreme Court upheld the Third Circuit majority and rejected Alito's reasoning that the law promoted necessary discussions of "economic constraints, future plans, or the husbands' previously expressed opposition" in a manner inoffensive to a woman's right to self-determination. The Supreme Court took Casey as an opportunity to reconsider its holding in Roe v. Wade, and the 6-3 majority ultimately stood so solidly with that decision that Judge Luttig would later describe Casey as "a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy."
Alito authored what Law.com called perhaps his "most memorable dissent" in Sheridan v. Dupont, a case that "forced the 3rd Circuit to tackle fundamental questions about the plaintiff's burden of proof" in sex discrimination cases under Title XII. Writing alone following the en banc hearing, Alito argued that admitting evidence casting doubt on the employer's claims of legitimate, nondiscriminatory reasons for the adverse employment decision might not be enough for the plaintiff to withstand summary judgment.
Writing for the majority in Fatin v. INS, Alito held that an Iranian woman could establish a valid claim for asylum by showing that she might be persecuted because of her gender, belief in feminism, membership in a feminist group, or failure to follow gender-specific laws such as those mandating she wear a veil in public.
On Separation of Church and StateWriting over a dissent, Alito authored the majority opinion in ACLU v. Schundler, which held that a city hall holiday display featuring a creche and a menorah did not violate the Establishment Clause because it also incorporated secular features such as Frosty The Snowman and a banner proclaiming commitment to diversity.
On Criminal LawUSNews reports that Alito construes criminals' and prisoners' rights narrowly:

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 conservatist 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.

On Free Speech and Minority Rights in Public SchoolsAlito wrote for the majority to strike down a school district's antiharassment policy that reached nonvulgar, non-school-sponsored speech posing no realistic threat of disruption to the learning environment in Saxe v. State College Area School District. He also wrote for the majority in Shore Regional High School Board of Education v. P.S., which held the school district in violation of the Individuals with Disabilities Education Act by failing to protect a student from "severe and prolonged harassment" by other students on account of his lack of athleticism and perceived sexual orientation; the school district had thereby failed to provide P.S. with a free and appropriate public education as required by the Act, according to the Administrative Law Judge whose ruling was reinstated by Alito's opinion.
UPDATE: More coverage of the Alito nomination:The 12 cases Alito litigated before the Supreme Court on behalf of the government.The President's and Judge Alito's statements. Other analysis here and here. Props go out to SCOTUSblog's Tom Goldstein for his early prediction of Alito's nomination.
(Hat tip to Anisha Dasgupta of SCOTUSBlog for her compilation of noteworthy opinions)