Supreme Court Justice
Samuel Alito?

By Alan Shapiro

To the Teacher:

President Bush's nomination of Judge Samuel Alito to the Supreme Court invites learning and classroom discussion about the Constitution, its interpretation, and the politics associated with a Supreme Court appointment.

The two student readings below provide information about the Constitution, the Supreme Court, and Judge Alito, including four brief case studies of his appeals court decisions. Use the student quiz and suggestions for small-group and class-wide discussion to engage students in considering the issues.

Student Reading 1:
Interpreting the Constitution

Key Statements about the Supreme Court in the U.S. Constitution:

• The president "shall nominate, and by and with the advice and consent of the Senate, shall appointÖjudges of the supreme courtÖ." (Article II, Sec. 2)
  
  
• "The judicial power of the United States, shall be vested in one supreme court and such inferior courts as the Congress may, from time to time, ordain and establish." (Article III, Sec. 1)
  
  
• "The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authorityÖ." (Article III, Sec. 2)

On October 31 President Bush nominated Samuel A. Alito Jr. as his choice to replace retiring Justice Sandra Day O'Connor on the Supreme Court. Judge Alito, 55, was born and raised in New Jersey. After attending Princeton University, he went to the Yale Law School. In his professional career he has been a law clerk, and served in the legal departments of the New Jersey state and the federal governments. He has also been the US attorney for the District of New Jersey and for the past 15 years a judge on the US Court of Appeals for the Third District. He is married and has a son, Phillip, in college, and a daughter, Laura, in high school.

Immediately, some politicians and commentators hailed him as a "strict constructionist." These words are usually meant to describe a judge who would interpret the Constitution as it is written. This is in contrast to a so-called "judicial activist," who would substitute his or her political opinions for what the Constitution says.

Other politicians and commentators attacked him as a right-wing ultra-conservative who would indeed be a judicial activist.

The Constitution is silent about the qualifications for a Supreme Court justice. It says nothing about a nominee's political views or ideological perspective. "Strict constructionist" and "judicial activist" are not in its vocabulary. Nor does it say anything about how the Constitution should be interpreted. Politicians and commentators began arguing about many of these ideas long after the Constitution was written by men like George Washington, John Adams, Thomas Jefferson, and James Madisonówho themselves did not always agree politically.

And of course the Constitution says nothing about attention-getting controversial issues of our day that the document's framers could not have envisionedóthe right of a woman to have an abortion, the right to own and to sell a machine gun, racial discrimination in employment, a display of a Nativity scene, a menorah and Santa Claus on public property.

The founders of the United States provided a framework for the government and a separation of powers. They knew that the Constitution needed to be flexible enough to suit the needs of later generations. And since its 1803 decision in Marbury v. Madison, the Supreme Court has had the authority to rule on everything from the constitutionality of congressional legislation to the meanings that should be given to Constitutional phrases such as "regulate commerce" between states (Article 1, Section 8) and "an establishment of religion" (First Amendment).

The Constitution requires that the Senate provide "advice and consent" (Article II, Section 2) for a president's Supreme Court nominations. In January 2006 the Senate Judiciary Committee holds confirmation hearings for Judge Alito. When they are completed, the full Senate will determine whether or not Alito will become a Supreme Court justice.

For discussion

1. Consider the terms "strict constructionist" and "judicial activist." How are they usually used? Abused?

2. A woman's right to an abortion will be a major issue in the Alito confirmation hearings. Why? What is the constitutional basis of Roe v. Wade (a question calling for some student inquiry)?

3. Why is the "establishment of religion" clause in the First Amendment something that justices disagree about?

Classroom Exercise:
Making court decisions

Before students respond to the exercise questions below, discuss with them the basic constitutional and/or legal issue involved in each case.

Case 1: Supreme Court recognition of a "right to privacy" it has interpreted as inherent in various provisions of the Bill of Rights. Roe v. Wade (1973) established a woman's right to an abortion.

Case 2: Establishment clause of First Amendment

Case 3: Civil Rights Act, Section VII

Case 4: Article I, Section 8 of the Constitution (regulation of commerce among states)

Student quiz

Write your opinions on how you think the Constitution should be interpreted in each of the following situations:

1. Before a woman seeks an abortion, should she be required to notify her husband? Why or why not?

2. Does a holiday display in front of a city hall that includes religious symbols like a Nativity scene violate the First Amendment? Why or why not?

3. Should an employee who believes that racial discrimination is responsible for her not being promoted have the right to sue an employer? Why or why not?

4. Should an adult be allowed to own and sell a machine gun? Why or why not?

For discussion

Following their completion of the quiz, have students read their responses in small groups and then select what they regard as the best response to each. The teacher might then ask for a sampling of those responses to be read to the class. Allow time for clarifying questions and whole-class discussion.

Student Reading 2:
Four Controversial Alito Rulings

As an appeals court judge, Samuel Alito has ruled on hundreds of cases. Below are brief descriptions of four of Alito's most controversial rulingsódecisions that will be discussed in his confirmation hearings. They are also the cases referred to in the questions you answered in Part Two.

Case 1: Planned Parenthood of Southeastern Pennsylvania v. Casey (1991)

A 1989 Pennsylvania Abortion Control Act required a woman seeking an abortion to sign a statement affirming that she had notified her husband of her intention to abort a fetus. The United States Court of Appeals for the Third Circuit ruled 2-1 that the Pennsylvania act was unconstitutional.

In his minority dissent, Judge Alito defended the law, arguing that the great majority of women consult with their husbands before getting an abortion without such a law, and that therefore it would apply to only a small number of women. He stated that the provision "cannot affect more than about 5 percent of married women seeking abortions or an even smaller percentage of all women desiring abortions."

But critics of Judge Alito's dissent responded that the law would harm that minority of women. They argued that a woman in a stable marriage could be expected to reach a joint decision with her partner about an abortion without the government requiring her to do so. But a woman in an unstable or violent marriage could be endangered by being forced to notify her husband of her intent to terminate her pregnancy. Critics also argued that Alito's opinion suggests he would vote to overturn Roe v. Wade, the 1973 Supreme Court decision guaranteeing a woman's right to an abortion.

Ultimately, in a 5-4 vote, the United States Supreme Court, including the justice Judge Alito has been nominated to replace, Justice O'Connor, upheld the decision of the majority, ruling that the provision placed an "undue burden" on a woman.

Case 2: American Civil Liberties Union v. Schundler (1999)

The ACLU sued to eliminate a holiday display including a crèche, a menorah, Frosty the Snowman and Kwanzaa symbols at the city hall in Jersey City, NJ. Its position was that the city had violated the establishment clause of the First Amendment by sanctioning a display of religious symbols on public property.

Judge Alito, writing for the appeals court majority in upholding the display, declared, "It is hard to accept the proposition that the Establishment Clause is violated when these two symbols are displayed together as part of a holiday display that includes secular symbols and is dedicated to the celebration of the municipality's cultural diversity." He agreed, however, that an earlier display of a Nativity scene and a menorah violated the establishment clause of the First Amendment.

Case 3: Bray v. Marriott Hotels (1997)

Beryl Bray, a housekeeping manager at a Marriott Hotel in Park Ridge, NJ, alleged she was not promoted because she is African-American. A district court ruled for Marriott Hotels, denying Bray the right to a jury trial. But a majority of the appeals court overturned this decision, stating it "would immunize employers from the reach of Title VII if the employer's belief that it had selected the 'best' candidate, was the result of conscious racial bias." Title VII is a section of the Civil Rights Act, which protects against discrimination based on sex or race.

Judge Alito dissented from the majority view, declaring that the hotel committed "minor inconsistencies" in its rules for filling jobs and that it was wrong to allow "disgruntled employees to impose the costs of a trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly."

Alito's dissent prompted a strong response from the other two judges sitting with him on the court. They wrote that the law that bans employment discrimination "would be eviscerated" if courts followed Alito's logic.

Case 4: United States v. Rybar (1996)

Raymond Rybar Jr., a federally licensed firearms dealer, sold submachine guns on two successive days at a gun show in Monroeville, PA. Congress had recently passed a law prohibiting the possession of machine guns under its power "to regulate commerceÖ among the several states." Rybar was later arrested and convicted for unlawfully owning and selling the submachine guns. He appealed this decision.

Writing for the 2-1 majority of the appeals court, Judge Dolores Sloviter upheld the decision against Rybar. She said possession of machine guns affected the market for them and therefore had to have effects on interstate commerce. Judge Alito dissented from the majority view. He argued that possession of a machine gun had no effect on interstate commerce and that when it enacted its machine gun prohibition, Congress overstepped its constitutional authority.

(For more information on each case, do a web search using its title.)

For discussion

Have students changed their views on the issues after reading summaries of the four cases?

Divide the class into groups of three students. Each group is to constitute an appeals court to discuss and then to reach a decision on one of the four cases.

A student should be appointed in each group to report this decision to the class, to briefly summarize the reasons for it, and to state the vote. After each report, provide an opportunity for other students to raise questions and to comment on the decision.

Suggested Additional Activities


Student reports

Ask students to watch or read reports of the Senate Judiciary Committee confirmation hearings of the Alito nomination. Then discuss or assign reports on such matters as:

1. What constitutional issues receive the most attention? Why?

2. Senators will almost certainly question Judge Alito on such matters as the following. Why?

• Alito's membership in the Concerned Alumni of Princeton (This is a conservative organization that sparked controversy two decades ago when it argued that school officials had lowered admission standards to accept women and minority applicants)
• Alito's application statement for a job in the Reagan administration
• Alito's views on privacy and, especially, the Griswold case

3. What issues seem most controversial? Why?

4. What questions do senators ask? How good are the questions? Why?

5. What do Judge Alito's answers reveal about his judicial philosophy?

6. Based on what you learn of Judge Alito, would you vote to confirm him as a Supreme Court justice? Why?

7. What is the vote of the Senate Judiciary Committee? How would you explain these results?

Student Inquiry

Judge Alito has rendered many decisions in his 15-year career on an appeals court and will be questioned at his confirmation hearings on a number of them. A few of his decisions that students might explore:

• Saxe v. State College Area School District (freedom of speech)
• LePage's v. 3M (anti-trust laws)
• Sheridan v. E.I. du Pont de Nemours (sex discrimination)
• Public Interest Research Group v. Magnesium Elekron (violation of Clean Water Act)
• Baker v. Monroe Township (improper arrest)
• W.R. Grace v. EPA (environment)
• Chittister v. Department of Community and Economic Development (Family Medical Leave Act)

Citizenship

Have students prepare concise statements of their views about whether Judge Alito should be confirmed as a Supreme Court justice and e-mail their senators before they vote.

This essay was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

Back to top