Pubdate: Tue, 01 Nov 2005
Source: New York Times (NY)
Column: The Paper Trail
Copyright: 2005 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Authors: Adam Liptak and Jonathan D. Glater
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

RULINGS THAT ARE LUCID AND METHODICALLY BASED

The reasoning in Judge Samuel A. Alito Jr.'s decisions is mostly
methodical, dry and respectful of precedent, but the technical quality
of his writing can mask bold and solidly conservative conclusions on
issues like abortion, gun control and the death penalty.

President Bush's last two nominees to the Supreme Court had nothing
like Judge Alito's enormous judicial track record. Chief Justice John
G. Roberts Jr.'s brief tenure on the federal appeals court in
Washington before his recent elevation gave rise to few memorable
decisions, and Harriet E. Miers's lack of judicial experience may have
played a role in the withdrawal of her nomination.

Judge Alito, by contrast, has tackled many of the biggest issues in
American law in his 15 years on the United States Court of Appeals for
the Third Circuit, in Philadelphia. He is not given to flamboyant
writing or overarching theories. His decisions are careful, thorough
and lucid, and his writing is seldom ambiguous or weighed down by
legal jargon.

Not all of his decisions are easy to categorize. He has, for instance,
been skeptical about the scope of Congressional power, voting to
strike down laws that authorized suits under the Family and Medical
Leave Act and made the possession of machine guns a crime. But his
decisions in favor of states' rights could also indicate sympathy for
allowing local lawmakers rather than Congress to address issues like
medical marijuana and assisted suicide.

The Supreme Court has on at least three occasions indicated its
disagreement with the positions of Judge Alito in important cases.
Although he had arguably applied existing Supreme Court precedents
diligently in each case, the high court nonetheless reached differing
conclusions by revisiting - and sometimes reinterpreting - the legal
principles involved.

In 1991, he wrote a dissent in Planned Parenthood v. Casey, saying a
Pennsylvania law requiring women to notify their husbands before they
had abortions was constitutional. The Supreme Court heard an appeal of
the case the next year, rejecting Judge Alito's position.

In 2000, Judge Alito, writing for a unanimous three-judge panel, ruled
that states were immune from suits under the Family and Medical Leave
Act. That decision was well supported by the existing precedents. But
in 2003, in a different case, the Supreme Court authorized such suits.

That case on medical leave was significant, said Goodwin Liu, a law
professor at the University of California, Berkeley, because Judge
Alito extended the Supreme Court precedents to the breaking point.

"The Supreme Court decided that even its own path down the road of
limiting Congress's power would not go so far," Professor Liu said.

In a third case, last year, again citing the governing Supreme Court
precedents, Judge Alito ruled against a death row inmate who said his
lawyers had not represented him effectively.

The defendant in that case, Ronald Rompilla, had been convicted of
killing a bar owner.

"Rompilla is now arguing," Judge Alito wrote, "that his trial counsel
were constitutionally derelict in failing to take all the steps that
might have been pursued by the most resourceful defense attorneys with
bountiful investigative support. But while we may hope for the day
when every criminal defendant receives that level of representation,
that is more than the Sixth Amendment demands."

In June, the Supreme Court reversed the ruling, saying that the
lawyers' failure to search the inmate's record for evidence that could
have persuaded the jury to spare his life indeed fell below minimum
constitutional standards.

Justice David H. Souter, writing for the majority in the 5-to-4
reversal, said, "It flouts prudence to deny that a defense lawyer
should try to look at a file he knows the prosecution will cull for
aggravating evidence, let alone when the file is sitting in the trial
courthouse, open for the asking."

Aside from abortion, the issue that may most interest the senators who
will vote on Judge Alito's nomination is the scope of Congressional
power. In a dissent in 1996, he wrote that Congress did not have the
authority to regulate the possession of machine guns under the
commerce clause of the Constitution. He reasoned that a 1995 Supreme
Court decision, United States v. Lopez, that struck down a law that
made it a crime to possess guns near schools, applied to a law
prohibiting the transfer and possession of machine guns.

"If there are distinctions of constitutional dimension here," Judge
Alito wrote, "they are too subtle for me to grasp."

He added that Congress might be able to justify the law by
demonstrating that machine guns facilitated certain crimes that had an
effect on interstate commerce. Congress had not, however, done so,
Judge Alito wrote.

Judge Dolores K. Sloviter, writing for the two judges in the majority,
disagreed.

"Nothing in Lopez requires either Congress or the executive to play
show and tell with the federal courts at the peril of invalidation of
a Congressional statute," Judge Sloviter wrote.

In the Family and Medical Leave Act case, Judge Alito also took a
constrained view of Congressional power. He wrote that the asserted
source of Congressional authority there, Section 5 of the 14th
Amendment, was insufficient to allow suits against the states in cases
on the leave act.

Section 5 allows Congress to "enforce, by appropriate legislation,"
that amendment's guarantees of equal protection and due process. But
the leave act, Judge Alito wrote, does more than protect against
discrimination.

It "does much more than require nondiscriminatory sick leave
practices," he wrote, adding, "It creates a substantive entitlement to
sick leave."

That, he concluded, does not "represent a valid exercise of Congress's
power."

The Supreme Court effectively overruled the decision in a 2003 case,
Nevada Department of Human Resources v. Hibbs. Writing for majority,
Chief Justice William H. Rehnquist said that the act did indeed combat
sex discrimination. The act, Chief Justice Rehnquist wrote, was
"narrowly targeted at the fault line between work and family -
precisely where sex-based overgeneralization has been and remains strongest."

Judge Alito has issued a series of rulings reading the First Amendment
speech and press clauses broadly. In 2000, he wrote for a unanimous
three-judge panel that struck down a Pennsylvania school district's
antiharassment policy on the grounds of free speech. The policy
prohibited jokes and demeaning comments about race, religion, gender
and sexual orientation.

The policy was too broad, Judge Alito wrote. There is, he said, "no
question that the free speech clause protects a wide variety of speech
that listeners may consider deeply offensive, including statements
that impugn another's race or national origin or that denigrate
religious beliefs."

Last year, again writing for a unanimous three-judge panel, Judge
Alito struck down another Pennsylvania law, one that prohibited
advertisers from paying for alcohol advertisements in college
newspapers. The law was unconstitutional, he wrote, for two reasons.
It restricted the advertisers' speech rights without a showing that
the ban would make a difference in combating under-age drinking.

And it violated the newspaper's own speech rights by singling it out
for a financial penalty.

"If government were free to suppress disfavored speech by preventing
potential speakers from being paid," he wrote, "there would not be
much left of the First Amendment."

Judge Alito wrote for the majority in a divided 1999 decision that
upheld a holiday display in Jersey City. He said the display, which
included a menorah, a Christmas tree, a creche, a Santa Claus, a
Frosty the Snowman, a sled and Kwanzaa symbols, fit precisely within
the bounds of an earlier Supreme Court decision. A dissenting judge,
Richard L. Nygaard, said the combination conveyed an impermissible
religious message. It seems to me, he wrote, "that the dominant
message of the display is an endorsement of religion."

Judge Alito has a tough side. In 2002, he considered the case of a man
who had spent seven years in prison on civil contempt charges. The
prisoner, H. Beatty Chadwick, was ordered to pay $2.5 million in a
divorce in 1994. Mr. Chadwick refused and was jailed.

Seven years later, a federal trial judge, Norma L. Shapiro, ordered
him freed, saying, "After such an extensive time period, Chadwick
cannot remain incarcerated without the due process."

Judge Alito, writing for a unanimous three-judge panel, reversed that
decision. Because Mr. Chadwick remained able to pay the money, the
judge wrote, and because the point of civil contempt is coercion
rather than punishment, Mr. Chadwick could be held indefinitely.
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