Samuel Alito (1 April 1950 - ) is an Associate Justice on the United States Supreme Court, at the time of this writing the Court's most junior member. He was nominated to the vacancy left by Sandra Day O'Connor's retirement by President George W. Bush on 31 October 2005 and confirmed by the Senate on 31 January 2006 by a fairly narrow margin of 58-42. His nomination was contentious because of his staunchly conservative views; many political analysts view the President's selection of Alito as a way to appease his base after they rejected his first nominee, Harriet Miers, whose conservative credentials were not as clear.

Life and times

Sam Alito was born in Trenton, New Jersey to Italian-American parents, Samuel Sr. and Rose (née Fradusco). He got his undergraduate education at Princeton's Woodrow Wilson School of Public and International Affairs, graduating in 1972. At Princeton, he led a student conference entitled "The Boundaries of Privacy in American Society", which pushed for limits on domestic spying and called for sodomy laws to be overturned. During the conference, Alito himself said, "No private sexual act between consenting adults should be forbidden." He also joined the school's Army ROTC program, which had briefly been driven off campus by radical activists. He spent most of his time in the Army as an inactive reserve.

After he got his bachelor's degree, he went to Yale Law School, getting his Juris Doctor in 1975. During his years at Yale, he apparently became a member of a group called Concerned Alumni of Princeton (though the only record of his membership is his own résumé, as group records don't mention his name), a conservative group whose goals included limiting the number of women admitted to Princeton and opposition to affirmative action. His membership in this group would prove problematic after his nomination to the Supreme Court.

After graduation, he began his career by serving as a law clerk for Leonard I. Garth, judge on the Third Circuit Court of Appeals. Following that, he served from 1977 to 1981 as assistant U.S. Attorney in New Jersey. He worked as an assitant to Solicitor General Rex E. Lee from 1981 to 1985, and then as deputy assistant to Attorney General Ed Meese. He became the U.S. Attorney in New Jersey after this, serving from 1987 to 1990 before becoming an Appeals Court judge on the Third Circuit, where we worked until his confirmation to the Supreme Court in 2006. He worked simultaneously as Adjunct Professor of Law at Seton Hall University between 1999 and 2004.

Nomination

Chief Justice William H. Rehnquist's health had been in decline since his diagnosis with thyroid cancer in late 2004. He began missing arguments and rarely appearing in public, and it was anticipated that the President would end up naming a successor soon. So it came as something of a surprise that Sandra Day O'Connor announced her resignation from the Supreme Court first, on 1 July 2005 (after privately consulting with Rehnquist about whether he expected to step down soon.) The choosing of O'Connor's successor ended up taking an unexpectedly long time. John Roberts was the first nominee for her spot, but upon Rehnquist's death he was instead nominated (and later confirmed) as Chief Justice. The next nominee was Harriet Miers, who was unpopular with conservatives and liberals alike, having less experience than generally expected of a Supreme Court nominee. Alito was finally nominated to O'Connor's spot on Halloween, 2005.

Alito was popular on the right, perceived as another conservative along the lines of Antonin Scalia or Clarence Thomas (in fact, his similarity to Scalia earned him the nickname "Scalito", first used in a 1992 article in the National Law Journal.) His nomination was particularly contentious because of the careful balance between left- and right-leaning justices on the Supreme Court. As Sandra Day O'Connor's replacement, his confirmation would represent a significant shift in the Court's ideology, as O'Connor was politically moderate, and given the overall conservatism of the Rehnquist Court she was (despite being nominated by Ronald Reagan) part of the Court's precarious liberal block on many issues, particularly abortion.

Sandra Day O'Connor had also, during her last years on the Court, become uncomfortable with the legislature's increasing tendency to view Court decisions as "judicial activism". In nominating Alito, President Bush said that "[h]e understands judges are to interpret the laws, not to impose their preferences or priorities on the people" — a clear reference to arguments over the role of the judiciary in American government. Thus, Alito's confirmation as her successor would likely tilt the Court significantly further towards the right. Between these two issues and concerns about Alito's personal beliefs (in part due to his purported membership in the Concerned Alumni of Princeton — though during nomination hearings, he claimed not to remember being a member), he was a polarizing figure during confirmation hearings.

Alito's jurisprudence

The unitary executive

The theory of the unitary executive, as posited by certain Constitutional scholars, holds that the executive power of the government is vested only in the president, and as such the president can do things like dismiss independent counsels at will. Congress, under this theory, has little power to remove executive officers, and executive agencies can't sue each other, as this would represent the president suing himself. Questions have been raised about whether Alito subscribes to this theory, though he was evasive during his confirmation hearings.

While this seems like a minor point of legal argument, the idea of the unitary executive has become important during the second Bush administration. Rhetoric from the Bush administration has been construed by many viewers as representing an extreme interpretation of the unitary executive theory promulgated by law professor John Yoo, under which the president's use of military power is not subject to review. Bush has also made extensive use of signing statements — a practice advocated by Alito — in signing bills into law; these statements essentially represent the President's interpretation of the new law. While signing statements themselves have no legal power, given the fact that the executive is charged under the Constitution with "faithfully execut[ing]" the laws, the prospect of the president creating his own interpretations of the law is troubling. Some of his statements have even been seen as applications of the line item veto, which was ruled unconstitutional in 1998. Alito's opinions on these issues raises the question of whether his rulings will reflect the common understanding of the separation of powers.

Abortion

The famous case Planned Parenthood v. Casey went before the Third Circuit in 1991 before reaching the Supreme Court. At issue was a law in Pennsylvania restricting access to abortion, or more specifically four provisions of the law: the informed consent rule, which required doctors to give specific information about the health risks of abortion; the parental consent rule, which required minors seeking abortion to obtain a parent's agreement; the spousal notification rule, which required women to inform their husbands prior to an abortion; and a provision requiring a twenty-four hour waiting period before an abortion.

When the Appeals Court ruled in the case, the three-judge panel upheld three of the provisions, striking down the spousal notification rule. Alito dissented on this portion of the ruling, and his reasoning compared it to previous rulings upholding parental consent requirements. (The statute granted certain exceptions — such as in cases where the woman had reason to believe she would be injured by her husband if she told him — but the court held that this still constituted an "undue burden".) Alito's disagreement is disturbing, as it seems to imply that the relationship between a woman and her husband is comparable to the relationship between a teenage girl and her parents, though Alito couched his disagreement in statistics that he claimed proved that only a small number of women would be significantly affected by the provision. He made explicit reference to O'Connor's writing on abortion in his dissent, but in the Supreme Court's decision, O'Connor called his reasoning "troubling", saying "A State may not give to a man the kind of dominion over his wife that parents exercise over their children." His status as O'Connor's replacement lends a certain irony to this debate.

In other cases regarding abortion, Alito's voting has been largely similar to that of other judges, though he has stated that he does not believe in any constitutional right to abortion. During his period with the Justice Department under Reagan, Alito wrote a memo developing a strategy for the administration to fight Roe v. Wade. He was generally evasive in responding to questions about abortion during his confirmation hearings, though he affirmed that he believes that Roe v. Wade is settled law and he has stated his believe in stare decisis, the Court's standard of upholding prior decisions (which makes him closer to the mainstream than Clarence Thomas.)

The death penalty

Analyses of Alito's voting records show that he tends to side with prosecutors in criminal cases, and in particular he has opposed restrictions on the death penalty; according to the Washington Post, he has never once voted to prevent an execution (though that has since changed: in his first vote on the high court, he sided with the majority 6-3 in refusing to vacate a stay of execution from the Eighth Circuit Court for Michael Taylor.) Sandra Day O'Connor (along with much of the Rehnquist Court) has tended in recent years to vote for more and more restrictions on the death penalty, and with Alito replacing her, the Court may become substantially less inclined to restrict the death penalty.

In the end

Alito was confirmed by a fairly narrow 58-42 margin (by comparison with other Supreme Court confirmations.) Massachusetts senators John Kerry and Ted Kennedy attempted a filibuster, but while most Democrats in the senate opposed Alito's nomination, fewer were willing to support filibustering, and cloture was invoked by a 72-24 margin (though this group didn't include prominent Democrats such as Hillary Clinton and Senate Minority Leader Harry Reid.) It remains to be seen whether his presence on the Court will significantly change the Court's rulings on controversial issues, as many on the left have predicted.

References

Planned Parenthood v. Casey 947 F.2d 682 (3d Cir. 1991)
The White House's official biography (http://www.whitehouse.gov/infocus/judicialnominees/alito.html)
Washington Post profile (http://www.washingtonpost.com/wp-dyn/content/article/2005/10/31/AR2005103100227.html)
"Alito, In and Out of the Mainstream". The Washington Post (http://www.washingtonpost.com/wp-dyn/content/article/2005/12/31/AR2005123100328.html)
"Alito Helped Craft Reagan-Era Move To Restrict Roe". The Washington Post (http://www.washingtonpost.com/wp-dyn/content/article/2005/11/30/AR2005113000723.html?nav=hcmodule)