Supreme Court Review 2017/2018 TERM


They are called "Justices" not "Judges" to differentiate themselves from lower court judges

On October 31, 2005, President George W. Bush nominated Justice Samuel A. Alito, Jr. to replace retiring justice Sandra Day O'Connor. Justice Alito was confirmed by the Senate 58-42 and assumed office on January 31, 2006. Prior to joining the Supreme Court, Justice Alito was a judge for 16 years on the United States Court of Appeals for the Third Circuit.

Justice Samuel A. Alito, Jr. was born on April 1, 1950, in Trenton, New Jersey to Italian immigrants, Samuel Alito Sr. and Rose Fradusco. He grew up in the suburbs of Trenton where his father worked as the Director of the New Jersey Office of Legislative Services and his mother worked as a school principle. Alito attended Steinert High School in Hamilton Township, where he excelled academically.

After high school, Alito attended Princeton University's Woodrow Wilson School of Public and International Affairs. While a student at Princeton, Alito led a student conference called "The Boundaries of Privacy in American Society." The conference supported placing limits on the gathering of domestic intelligence, decriminalizing sodomy, and ending employment discrimination against homosexuals.  

In 1970, Alito joined an Army ROTC program during which he attended a six-week summer camp at Fort Knox, Kentucky. During Alito's senior year at Princeton, he studied abroad in Italy where he wrote his senior thesis on the Italian legal system. Upon graduation in 1972, Alito foreshadowed his future when he wrote in the yearbook that he hoped to "eventually warm a seat on the Supreme Court." After graduation, Alito was commissioned as a Second Lieutenant in the US Army Signal Corps and assigned to the United States Army Reserve.

Alito went on to attend Yale Law School, where he served as editor of the Yale Law Journal. After graduating from Yale Law School in 1975, Alito served in the military, achieved the rank of captain, and, in 1980, received an honorable discharge

In 1975, Alito moved to Newark, New Jersey to clerk for Judge Leonard Garth on the Third Circuit Court of Appeals. He interviewed for a Supreme Court clerkship with Justice Byron White, but he was not hired. Upon completing his clerkship with Judge Garth, Alito served as an Assistant United States Attorney for the District of New Jersey from 1977 to 1981. As an Assistant US Attorney, he prosecuted cases involving drug trafficking and organized crime.

Alito next moved to Washington, DC to serve as an Assistant to the Solicitor General from 1981 to 1985. In that capacity, Alito argued 12 cases before the Supreme Court on behalf of the federal government. Alito then served as a Deputy Assistant to the Attorney General between 1985 and 1987. In 1987, Alito returned to New Jersey to act as US Attorney for the District of New Jersey. As US Attorney, Alito was a vigorous and effective prosecutor of organized crime in part because of his belief that perpetrators of organized crime gave Italian-Americans a negative image.

Three years later, on February 20, 1990, President George H. W. Bush nominated Alito to the US Court of Appeals for the Third Circuit. At the time of his nomination, Alito was rated "well qualified" by the American Bar Association. He was confirmed by unanimous consent in the Senate. At this time, the Third Circuit was dominated by more liberal judges and Alito often found himself in the minority.

On the Third Circuit, Judge Alito initially wrote strong dissents because of his frustration over being in the minority so often. Soon, however, he softened his writing and reverted to a low-key profile on the court. His most controversial opinion while on the Third Circuit came in the case of Planned Parenthood v. Casey. Issuing a lone dissent in the case, Judge Alito argued that the Third Circuit should have upheld a provision of a Pennsylvania statute requiring women to inform their husbands prior to receiving an abortion. Justice Alito reasoned that married women constituted a minority of those seeking abortions and that those who failed to inform their husbands was an even smaller minority and that, therefore, the requirement to inform husbands could not be said to be an "undue burden" on the abortion right. When the case reached the Supreme Court, Justice Alito's reasoning was not followed by the plurality, which included Justice Sandra Day O'Connor, the justice he was destined to replace. The Court invalidated the provision requiring notice to husbands. Chief Justice William Rehnquist, in dissent, however, adopted Alito's reasoning and quoted from Alito's dissent.

During his time on the Third Circuit, Alito was also an adjunct professor at Seton Hall University School of Law. He taught courses in constitutional law and an original course on terrorism and civil liberties. In 1995, he was awarded the school's St. Thomas Moore Medal in recognition of his outstanding contributions to the field of law.

On October 31, 2005, Samuel Alito was nominated by President George W. Bush to the US Supreme Court to replace retiring justice Sandra Day O'Connor. Confirmation hearings were held in January 2006. On January 24, the Senate Judiciary Committee voted 10 to 8, along party lines, to approve the nomination to the full Senate. On January 31, the Senate voted 58-42 to confirm Alito to the Supreme Court.

Justice Alito's Jurisprudence

First Amendment Cases (Sympathy for Victims of Free Speech)
Justice Alito has parted with all of his colleagues in two First Amendment cases, wherein Justice Alito expressed sympathy for the victims.

In Snyder v. Phelps, the Court held that an anti-gay activist group could not be prevented from picketing a military funeral. In March 2006, Marine Lance Corporal Matthew Snyder was tragically killed in Iraq. Even though there is no evidence that Matthew was gay, a "fire and brimstone" fundamentalist religious group, Westboro Baptist Church, decided to picket the funeral, knowing that it would generate media attention. About a 1,000 feet away from the funeral home members of the Westboro Baptist Church held up signs that said "Thank God for Dead Soldiers," "Fags Doom Nations," "America is Doomed," "Priests Rape Boys," and "You're Going to Hell" for about 30 minutes before the funeral began. The protest dominated the media attention surrounding Matthew Snyder's funeral. The Westboro Baptist Church also published an article on its website ( entitled "The Burden of Marine Lance Cpl. Matthew Snyder," in which it stated that Matthew's parents "taught Matthew to defy his creator," "raised him for the devil," and "taught him that God was a liar." On seeing the news coverage after the funeral and reading the article after running a Google search on his son, Matthew's distraught father, Albert Snyder, sued the Westboro Baptist Church for among other torts, intentional infliction of emotional distress.

After a jury trial, Albert Snyder won a verdict of $2.9 million in compensatory damages and a total of $8 million in punitive damages against the Westboro Baptist Church. On appeal to the Fourth Circuit, the Westboro Baptist Church argued that the First Amendment protected their actions. The Fourth Circuit agreed and Albert Snyder appealed to the Supreme Court.

On appeal to the Supreme Court, the Court, in an 8-1 decision, authored by Chief Justice Roberts, held that even if the Westboro Baptist Church had directed their messages towards a particular individual, the dominant theme was of public import, rather than a private matter. The majority also noted that the protest was on public land, was peaceful, and did not interrupt the funeral. Justice Roberts wrote, "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

In his lone dissent, Justice Alito sympathized with Albert Snyder, stating, "Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace." Justice Alito explained that "the First Amendment does not shield utterances that form ‘no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'" That "order and morality," Justice Alito explained, was not being served in any way by the Westboro Baptist Church.

Justice Alito described the modus operandi of the group:

[C]hurch members have protested at nearly 600 military funerals. They have also picketed the funerals of police officers, firefighters, and the victims of natural disasters, accidents, and shocking crimes. This strategy works because it is expected that [their] verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree in Tucson—proclaiming that she was "better off dead"—their announcement was national news, and the church was able to obtain free air time on the radio in exchange for canceling its protest. Similarly, in 2006, the church got air time on a talk radio show in exchange for canceling its threatened protest at the funeral of five Amish girls killed by a crazed gunman.

Justice Alito believed that what the majority had chosen to color as predominantly "speech on matters of public concern" was in fact more accurately speech directed at personal attacks on victims of tragic events and their families. After all, Justice Alito surmises, a reasonable bystander seeing the signs displayed by the Westboro Baptist Church at Lance Cpl. Matthew Snyder's funeral would not have concluded that they were only a comment against homosexuality in general, but "would have likely concluded that they were meant to suggest that the deceased was a homosexual." Justice Alito concluded, "Allowing family members to have a few hours of peace without harassment does not undermine public debate."

In an unusual endorsement, former Justice John Paul Stevens, the third longest serving justice in the Court's history, announced at a public event that he would have voted with Alito in Snyder v. Phelps.

Justice Alito also issued a lone dissent in United States v. Stevens, a case involving a federal law that sought to criminalize the commercial creation, sale or possession of certain depictions of animal cruelty and focused on "crush videos," which were videos appealing to those with a very specific sexual fetish, wherein women would be shown slowly crushing animals to death "with their bare feet or while wearing high heeled shoes," sometimes while "talking to the animals in a kind of dominatrix patter" over "[t]he cries and squeals of the animals, obviously in great pain." The Supreme Court in an 8-1 decision invalidated the statute on First Amendment grounds, holding that the statute was overbroad since it could be applied to hunting-related depictions.

Justice Alito in his lone dissent argues that the Court had exaggerated the danger of the law being applied to hunting magazines and videos since hunting was legal in all 50 states and there was no real danger of the law being applied to hunting material. Rather, he argued, the Court should have avoided entertaining a facial challenge to this statute and should have instead limited its consideration to whether the law was unconstitutional as applied to the defendant in this case.

Justice Alito lamented that prior to this statute "the underlying conduct depicted in crush videos was nearly impossible to prosecute. These videos . . . were made in secret, generally without a live audience, and the faces of the women inflicting the torture in the material often were not shown, nor could the location of the place where the cruelty was being inflicted or the date of the activity be ascertained from the depiction. . . . The evidence presented to Congress posed a stark choice: Either ban the commercial exploitation of crush videos or tolerate a continuation of the criminal acts that they record." Justice Alito also spent considerable time describing acts of animal cruelty and quoted extensively from a Humane Society brief on the subject. Justice Alito, concluded, "The animals used in crush videos are living creatures that experience excruciating pain. . . . the harm caused by the underlying criminal acts greatly outweighs any trifling value that the depictions might be thought to possess."

Racial Discrimination
Justice Alito issued a notable concurring opinion in Ricci v. DeStefano (2009), a case addressing an exam for firefighters in New Haven, CT. The purpose was to identify those firefighters best qualified for promotion. The pass rate for minority candidates taking the exam was half the rate for non-minority candidates, and virtually no minority candidates would have been eligible for promotion had the exam results been certified. While African-Americans constituted 30 percent of the City's firefighters and Hispanics accounted for 16 percent, only nine percent of the senior ranks were African-American and nine percent Hispanic. The New Haven Civil Service Board (the CSB) refused to certify the test results because they believed they violated federal law – Title VII of the Civil Rights Act prohibits discrimination in the workplace based on race. Seventeen white firefighters and one Hispanic firefighter who passed the examinations and were denied the benefits of the exam results sued the City and others. On June 29, 2009, the Supreme Court handed down its decision in the case. In a 5-4 majority opinion authored by Justice Kennedy and joined by justices Roberts, Scalia, Thomas and Alito, the Court held that unless there was a strong-basis-in-evidence that the underlying test evidenced a discriminatory purpose not job related and consistent with business necessity or that an alternative practice that has less disparate impact and serves the employer's legitimate needs exists, the fact of a test whose results are racially disparate is not enough to establish a claim under Title VII. The Court found that the City and the other defendants could not meet this strong-basis-in-evidence standard.

In a concurring opinion, Justice Alito attempted to tell a more complete version of the facts, and he focused on the politics behinds the decision not to certify the test results.  Specifically, Justice Alito described the relationship between the New Haven Mayor, John DeStefano, and a politically powerful pastor, Reverend Boise Kimber. Justice Alito also sympathizes with firefighters who would have received promotions had the test results been certified. He writes:

In order to qualify for promotion, they made personal sacrifices. Petitioner Frank Ricci, who is dyslexic, found it necessary to "hir[e] someone, at considerable expense, to read onto audiotape the content of the books and study materials." He "studied an average of eight to thirteen hours a day … , even listening to audio tapes while driving his car." Petitioner Benjamin Vargas, who is Hispanic, had to "give up a part-time job," and his wife had to "take leave from her own job in order to take care of their three young children while Vargas studied." "Vargas devoted countless hours to study … , missed two of his children's birthdays and over two weeks of vacation time,' and ‘incurred significant financial expense' during the three-month study period."

Age Discrimination
Justice Alito departed from his more conservative brethren to write the opinion in Gomez-Perez v. Potter (2008).  The law at issue was a provision of the Age Discrimination in Employment Act of 1967 that prohibited federal employers from discriminating against employees based on age. The majority held that the provision also prohibited federal employers from retaliation after an employee has complained of age discrimination in the workplace. Justice Roberts, joined by justices Scalia and Thomas dissented arguing that Congress had purposely separated discrimination claims and retaliation claims in this context since the established civil service system already had a detailed administrative scheme through which federal employees could vindicate anti-retaliation rights.

Sex Discrimination
Only a year after being appointed to the Court, Justice Alito wrote the decision in a controversial 5-4 decision, Ledbetter v. Goodyear Tire and Rubber. Lilly Ledbetter was employed by Goodyear at their plant in Gadsden, Alabama. During her employment there, pay raises were based on performance evaluations. After her retirement in 1998, Ledbetter filed suit with the Equal Employment Opportunity Commission claiming sex discrimination under Title VII of the Civil Rights Act of 1964. Ledbetter claimed that several supervisors had given her poor evaluations because of her sex and as a result her pay had not increased as much as it would have if she were evaluated fairly. She claimed that these past pay decisions affected the amount of her pay throughout her employment and that by the end of her employment she was earning significantly less than her male counterparts. A jury found for Ledbetter awarding back pay and damages.

On appeal, Goodyear claimed that Ledbetter's pay discrimination claim was time barred by Title VII. Anyone wishing to sue under Title VII of the Civil Rights Act must file an EEOC charge within 180 days after the alleged unlawful employment practice. The 180-day period is known as a charging period. Ledbetter did not claim that Goodyear made any discriminatory decisions against her during the charging period that existed in 1998. Instead, she claimed that each paycheck that she received during the charging period acted as a new act of discrimination, thus triggering a new EEOC charging period.

Justice Alito writing for the Court, held that Ledbetter was time barred from bringing her discrimination case because "a new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination." That is, the issuance of a new paycheck does not reset the EEOC charging period. Ledbetter should have filed her suit within 180 days of each discriminatory action of denying her a raise.

Justice Alito held that the short filing timeline reflected Congress' intent of prompt resolution of employment discrimination allegations through voluntary cooperation and that there was no reason to treat Ledbetter's claim any different from other discrimination claims. Ledbetter argued that she was not privy to the decisions of her employers and did not know that she was being discriminated against until she become aware of the pay discrepancy between her and her male counterparts.

The Ledbetter decision was subsequently reversed by Congress. In 2009, President Obama signed the Lilly Ledbetter Fair Pay Act, which amended the law to make clear that the 180-day charging period is renewed with each discriminatory paycheck issued.

Gun Rights
In 2010, Justice Alito wrote for the majority in another controversial case, McDonald v. City of Chicago. The City of Chicago had very restrictive gun laws that effectively banned handgun possession by private citizens. This ban was challenged based on the Court's decision in District of Columbia v. Heller. In Heller, the Court held that the Second Amendment protects the right to keep and bear firearms for the purpose of self-defense and struck down a D.C. regulation that banned gun ownership. Writing for the Court in McDonald, Justice Alito held that the 14th Amendment incorporated the Second Amendment right to keep and bear arms and, therefore, that it applied to the States.

Relying on the previous Heller decision, Alito wrote that self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller decision held that individual self-defense is the central component of the Second Amendment right. Quoting from Heller, Alito explored the origin of the right to self-defense in English law and the esteem with which the right was recognized in colonial times in the United States.

The McDonald decision was a victory for gun rights activists and confirmed the conservative judicial philosophy of Justice Alito.

Justice Alito joined his more conservative colleagues and wrote the majority opinion in FAA v. Cooper (2012), which held that a pilot who had kept his HIV positive diagnosis from Federal Aviation Administration (FAA), since at the time the FAA did not issue medical certificates required to operate aircraft to persons with HIV, could not bring suit for mental and emotional distress when the Social Security Administration revealed his medical status to the FAA in violation of the Privacy Act, causing him to lose his job. The Privacy Act only allowed recovery for "actual damages," Justice Alito held, which does not encompass non-pecuniary damages, such as those for mental and emotional distress. Justice Sotomayor, joined by justices Ginsburg and Breyer dissented arguing that the Court in limiting the words "actual damages" to pecuniary loss had "cripple[d] the Act's core purpose of redressing and deterring violations of privacy interests" since "individuals can no longer recover what our precedents and common sense understand to be the primary, and often only, damages sustained as a result of an invasion of privacy, namely mental or emotional distress."

Grand Jury Witness Immunity
Justice Alito authored the unanimous opinion in Regberg v. Paulk (2012), extending absolute immunity from suit under §1983 that existed for trial witnesses to grand jury witnesses, including complaining witnesses who are largely responsible for the ensuing prosecution. The petitioner in Rehberg had sued the District Attorney and his Chief Investigative Officer under § 1983 for conspiring to present false testimony to a grand jury, causing erroneous indictments to issue against him. Even though these allegations were true, the Alito opinion held that the proper remedy was a criminal prosecution for perjury, not a civil action for damages. Justice Alito explained that if grand jury proceedings could be made public in civil actions against grand jury witnesses for false testimony, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony, and would be less likely to testify fully and frankly, as they would be open to civil retribution.

Although Justice Alito has not signaled that he would overrule Roe v. Wade, he has supported restricting abortions that are available to women. On the Third Circuit, in 1991, Alito dissented in part in Planned Parenthood v. Casey, indicating that he would have voted to uphold a provision of a Pennsylvania statute, which required women to inform their husbands before obtaining an abortion. In the only abortion case heard during Justice Alito's tenure on the Supreme Court thus far, Gonzales v. Carhart (2007), Justice Alito joined the 5-4 majority opinion, authored by Justice Kennedy, upholding a Federal ban on partial-birth abortions on the grounds that the intact dilation and extraction procedure banned by the law is never needed to protect the health of a pregnant woman and, therefore,the fact that it did not contain an exception for the health of the mother, as required by a prior case (Stenberg v. Carhart) was irrelevant.

Criminal Law
A professor of law and political science at Northwestern, who collects statistics on the voting patterns of justices, including justice Alito, found that, as of 2011, Justice Alito supported the positions of criminal defendants in only 17 percent of the criminal cases heard during his time on the Court thus far, making him the second most conservative justice in criminal cases in the past 65 years, second only to Chief Justice William Rehnquist. The New York Times stated that this made Justice Alito "the least likely justice to show a glimmer of concern for the rights of criminal defendants."

Off the Bench
Justice Alito's only controversy so far on the Court concerned his reaction to President Obama at the 2010 State of the Union Address. During the address, President Obama criticized the Supreme Court's decision in Citizens United v. FEC, a campaign finance decision. President Obama stated that "the Supreme Court reversed a century of law to open the floodgates for special interests--including foreign corporations--to spend without limit in our elections." While the other justices present showed no reaction, Justice Alito was seen to mouth the words "not true" as the President spoke. This minor reaction from a Supreme Court justice was highly unusual. During the State of the Union, the Justices are expected to remain impartial and show no reaction to what is being said.

Justice Alito has said that his judicial philosophy is based on what he learned from his immigrant father. His father told him about being discriminated against for his nationality and religion and how he had to build a life on humble means. Justice Alito draws on this history and believes that everyone who comes before him in court should be treated the same and with respect.

Justice Alito has been married to law librarian Martha-Ann Bomgardner since 1985. They have two grown children--Philip and Laura.