After all those hours of senatorial grilling, how has Judge Samuel Alito done? It depends on whom you ask. The Republicans are impressed with the Supreme Court nominee. The Democrats are frustrated. And most high school sophomores are somewhere between delighted and confused because they probably could have ridden most of Alito’s vague answers to an easy A in civics class. But then again, they surely couldn’t use the concept of stare decisis as a stiff arm as confidently as Alito. Here’s a sampling of Alito’s more mind-boggling ambiguities.
1. Alito, in response to Senator Arlen Specter’s questions about a woman’s right to choose an abortion and the right to privacy in the Constitution:
I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there’s an invasion of a right to privacy, a legitimate expectation of privacy.
2. Alito, in response to the Specter’s asking about the significance of reliance on abortion (as stated in Casey v. Planned Parenthood):
I think the doctrine of stare decisis is a very important doctrine. It’s a fundamental part of our legal system. And it’s the principle that courts in general should follow their past precedents. And it’s important for a variety of reasons. It’s important because it limits the power of the judiciary. It’s important because it protects reliance interests. And it’s important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions. It’s not an exorable command, but it is a general presumption that courts are going to follow prior precedents.
Well, reliance is, as you mentioned, Mr. Chairman, one of the important foundations of the doctrine of stare decisis. It is intended to protect reliance interests.
And people can rely on judicial decisions in a variety of ways. There can be concrete economic reliance. Government institutions can be built up in reliance on prior decisions. Practices of agencies and government officials can be molded based on reliance. People can rely on decisions in a variety of ways.
3. Alito, in response to yet another Specter question connecting former Chief Justice Rehnquist’s opinion on the Miranda case to Roe v. Wade, for both are “embedded in the culture of our society”:
I think he getting at — he was right in saying that reliance can take many forms. It can take a very specific and concrete form, and there can be reliance in the sense that he was talking about there.
I think what [Rehnquist’s] talking about is that a great many people — and, in that instance, police departments around the country over a long period of time — had adapted to the Miranda rule, had internalized it. I think that all the branches of government had become familiar with it and comfortable with it and had come to regard it as a good way, after a considerable breaking in period, a good way of dealing with a difficult problem, and the problem was how to deal with interrogations leading to confessions. . . .
4. Alito, in response to Specter’s question concerning Alito’s 1986 statement that “since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress”:
I think the most important part of the memo that you’re referring to is a fairly big section that discusses theoretical problems. And it consists of a list of questions. And many of the questions are the questions that you just raised.
And in that memo, I said, “This is an unexplored area, and here are the theoretical questions that” — and, of course, they are of more than theoretical importance — “that arise in this area.”
That memo is labeled a rough first effort at stating the position of the administration. I was writing there on behalf of a working group that was looking into the question of implementing a decision that had already been made by the attorney general to issue signing statements for the purpose of weighing in on the meaning of statutes.
And in this memo, as I said, it was a rough first effort, and the biggest part of it, to my mind, was the statement: “There are difficult theoretical interpretive questions here, and here they are.” And had I followed up on it — and I don’t believe I had the opportunity to pursue this issue further during my time in the Justice Department — it would have been necessary to explore all those questions.
5. Alito in response to Senator Patrick Leahy’s concerns about Alito’s membership in the anti-coeducation Concerned Alumni of Princeton, day two:
Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization.
But since I put it down on that statement, then I certainly must have been a member at that time.
But if I had been actively involved in the organization in any way, if I had attended meetings, or been actively involved in any way, I would certainly remember that, and I don’t.
And I have tried to think of what might have caused me to sign up for membership. And if I did, it must have been around that time.
And the issue that had rankled me about Princeton for some time was the issue of ROTC. I was in ROTC when I was at Princeton, and the unit was expelled from the campus, and I thought that was very wrong. I had a lot of friends who were against the war in Vietnam, and I respected their opinions, but I didn’t think that it was right to oppose the military for that reason.
And the issue — although the Army unit was eventually brought back, the Navy and the Air Force units did not come back, and the issue kept coming up. And there were people who were strongly opposed to having any unit on campus.
And the attitude seemed to be that the military was the bad institution, and that Princeton was too good for the military, and that Princeton would somehow be sullied if people in uniform were walking around the campus, that the courses didn’t merit getting credit, that the instructors shouldn’t be viewed as part of the faculty.
And that was the issue that bothered me about that.
Well, Senator, as you said, from what I now know about the group, it seemed to be dedicated to the idea of bringing back the Princeton that existed at a prior point in time. And as you said, somebody from my background would not have been comfortable in an institution like that, and that certainly was not any part of my thinking in whatever I did in relation to this group.
6. Alito again on Concerned Alumni of Princeton, day three, with Senator Richard J. Durbin:
I’ve said what I can say about what I can recall about this group, Senator, which is virtually nothing.
I put it down on the ’85 form as a group in which I was a member. I didn’t say I was anything more than a member. And since I put it down, I’m sure that I was a member at the time.
But I’m also sure — and I have wracked my memory on this, that if I had participated in the group in any active way, if I had attended meetings or done anything else substantial in connection with this group, I would remember it.
And if I had repeated — if I had renewed my membership, for example, over a period of years, I’m sure I would remember that.
So that’s the best I can reconstruct as to what happened with this group.
I mentioned in wracking my memory about this, I said, “What would it have been, what could it have been about the administration of Princeton that would have caused me to sign up to be a member of this group around the time of this application?” And I don’t have a specific recollection, but I do know that the issue of ROTC has bothered me for a long period of time. The expulsion during the time of the units, at the time when I was a student there, struck me as a very bad thing for Princeton to do.
I did not join this group, I’m quite confident, because of any attitude toward women or minorities.
What has bothered me about — what bothered me about the Princeton administration over a period of time was the treatment of ROTC. And after the unit was brought back, I know there’s been a continuing controversy over a period of years about whether it would be kept on campus, whether in any way this was demeaning to the university to have an ROTC unit on campus, whether students who were enrolled in ROTC could receive credit for the courses, whether the ROTC instructors could be considered in any way a part of the faculty.
All of this bothered me, and it is my recollection that it continued over a period of time.
7. Alito, in response to Senator Orrin Hatch’s query about Alito’s “judicial philosophy”:
I think that my philosophy of the way I approached issues is to try to make sure that I get right what I decide. And that counsels in favor of not trying to do too much, not trying to decide questions that are too broad, not trying to decide questions that don’t have to be decided, and not going to broader grounds for a decision when a narrower ground is available.
8. Alito, in response to Senator Herbert Kohl’s question about the ideal judicial view of the law and of the Constitution:
I think that the Constitution contains both some very specific provisions, and there the job of understanding what the provision means and applying it to new factual situations that come up is relatively easy.
The Constitution sets age limits, for example, for people who want to hold various federal offices and there can’t be much debate about what that means or how it applies.
But it also contains some broad principles: no unreasonable search and seizures, the guarantee that nobody will be deprived of life, liberty or property without due process of law, equal protection of the laws. And in those instances, it is the job of the judiciary to try to understand the principle and apply it to the new situations that come before the judiciary.
I think the judiciary has to do that in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution.
They have to identify the principle that is to be applied under these broader provisions of the Constitution and apply it, but I don’t see that as being the same thing as the judges injecting his or her policy views or preferences or ideas about the direction in which the society should be moving into the decision-making process.
9. Alito, in response to Senator Kohl’s query about Alito’s statement that he believed “very strongly” in one element of the conservative philosophy, the “legitimacy of a government role in protecting traditional values,” and Kohl’s request that he define traditional values:
I’m trying to remember what I thought about that 20 years ago, and I’m trying to reconstruct it.
I think a traditional value that I probably had in mind was the ability to live in peace and safety in your neighborhood. And that was a big issue during the time of the Warren court. And it was still a big issue in 1985 when I wrote that statement, because that was a time of very high crime rates. I think that’s a traditional value.
I think the ability of people to raise a family and raise their children in accordance with their own beliefs is a traditional value. I think the ability to raise children in a way that they’re not only subjected to — they’re spared physical threats, but also psychological threats that can come from elements in the atmosphere, is a traditional value. I think that the ability to practice your own conscience is a traditional value.
That’s the best I can reconstruct it now, thinking back to 1985.
10. Alito, in response to Senator Michael DeWine’s question about the role of the judiciary in reviewing congressional fact-finding:
I think that the judiciary should have great respect for findings of fact that are made by Congress. And in the Rybar decision that I was discussing earlier, although it is controversial and it involved an application of the Lopez decision, I state that that decision would have been very different — that case would have been very different for me if Congress had made findings.
And that’s because of two things. I am fully aware of the fact that the members of the judiciary are not the officers in the United States who take an oath to support and defend the Constitution of the United States. The members of Congress take an oath to support the Constitution and officers of the executive branch take an oath to support the Constitution. And I presume that they go about their work in good faith.
The second point, and this goes directly to the issue of findings, is that the judiciary is not equipped at all to make findings about what’s going on in the real world, not just sort of legislative findings. And Congress, of course, is in the best position to do that. You have constituents. Members of Congress hear from their constituents. Congress can have hearings and examine complex social issues, receive statistical data, hear testimony from experts, analyze that and synthesize that and reduce that to findings.
And when Congress makes findings on questions that have a bearing on the constitutionality of legislation, I think they are entitled to great respect.
11. In response to Senator Sam Brownback’s query about how Alito views and interprets the Constitution:
I think the Constitution means something. And I don’t think it means whatever I might want it to mean or whatever any other member of the judiciary might want it to mean.
It has its own meaning. And it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution.
In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.
But I think we have to recognize that the Constitution is very different from statutes in some important respects.
Statutes are often very detailed, and they generally don’t exist without revision for very long periods of time.
The Constitution was adopted to endure throughout the history of our country. And considering how long our country has existed, it’s been amended relatively few times.
And the magic of that, I think, is that it sets out a basic structure for our government and protects fundamental rights. But on a number of very important issues, I think the framers recognized that times would change, new questions would come up. And so they didn’t purport to adopt a detailed code, for example, governing searches and seizures. That was the example I gave yesterday, and I’ll come back to it.
They could have set out a detailed code of search and seizure; they didn’t do that. They said that the people are protected against unreasonable searches and seizures, and they left it for the courts — and, of course, the legislative body can supplement this — to apply that principle to the new situations that come up.
Now, when that is done, that doesn’t amount to an amendment of the Constitution or a changing of the Constitution. It involves the application of a constitutional principle to the situation at hand.