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Alito's record reveals conservative, cautious judge

From Bill Mears
CNN Washington Bureau
"He's conservative to be sure," one attorney said of Judge Alito. "But he has a real sense of stability of the law."



Supreme Court
Samuel Alito
Crime, Law and Justice

WASHINGTON (CNN) -- Here are some rulings of Judge Samuel Alito from his service on the 3rd Circuit U.S. Court of Appeals since 1990:

Holiday religious displays

Agreed with the majority that a city hall holiday display containing a creche, a menorah, secular symbols of the season, and a banner proclaiming the city's dedication to diversity did not violate the constitutional ban on government "establishment" of religion. The non-religious symbols in the display in Jersey City, New Jersey, included Frosty the Snowman.

Alito: "Reasonably viewed, none of these displays conveyed a message of government endorsement of Christianity, Judaism or of religion in general but instead sent a message of pluralism and freedom to choose one's own beliefs."

But Alito made clear that displays of religious symbols alone would be on shaky constitutional ground.

"Jersey City would have us believe that the symbol of the creche has achieved such a level of secular status that it is religiously benign," he wrote. "We are not so persuaded. The mere fact that a religious symbol is pervasively displayed during the holiday season does not diminish its religious significance. A creche unambiguously represents a belief that is not universally shared by the citizens of this country." ACLU v. Schundler (1999)

Abortion: spousal notification

Disagreed with the majority that struck down a Pennsylvania law requiring women seeking abortions to notify their husbands.

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems-- such as economic constraints, future plans or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion," wrote Alito.

"The Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it 'unwise' or worse."

A divided Supreme Court, 5-4, upheld the lower court ruling the state law was unconstitutional. But Chief Justice Rehnquist in his dissent quoted Alito's opinion and agreed with his reasoning. Planned Parenthood of Southeastern Pennsylvania v. Casey (1991)

Late-term abortion

Agreed with majority that a state law banning a late-term abortion procedure critics call "partial birth" was unconstitutional, following a then-recent Supreme Court case. The high court is now considering whether to accept for review a similar federal law banning the procedure, which Alito could hear if he is confirmed. Planned Parenthood of Central New Jersey v. Farmer (2000)


Agreed with the majority that an Iranian woman did not fulfill a requirement that she have a "profound abhorrence" of her country's "gender specific laws and repressive social norms" in order to be eligible for asylum. However, the court established an important legal precedent: including women for the first time in a "particular social group" that might then be the basis for asylum. In this case the woman was allowed to try to prove she would be persecuted because of "gender specific laws and repressive social norms" in her Iranian homeland if she were deported. The court ultimately rejected the specific claim. Fatin v. INS (1993)

Disagreed with the majority that a Korean immigrant couple could not be deported for filing a false tax return, which did not meet the definition of an "aggravated felony." Alito sided with the Justice Department's interpretation of the statute and, in other immigration appeals, appeared to support the government's hard-line stance against illegal immigrants in a post-9/11 environment. Lee v. Ashcroft (2004)

Death penalty

Agreed with the majority that a death-row inmate received adequate legal representation.

Writing the majority opinion, Alito concluded Ronald Rompilla essentially was saying he was entitled to the "most resourceful defense attorneys with bountiful investigative support. ... We may hope for the day when every criminal defendant receives that level of representation," but that is more than the Constitution requires.

A divided Supreme Court later reversed that ruling, concluding the defendant received such dreadful representation at his 1988 trial that his death sentence should be overturned, a rebuke to Alito's view that his lawyers did enough to protect his rights. The justices overturned the death sentence. Rompilla v. Beard (2004)

Free speech: public schools

Agreed with the majority that struck down a public school district's anti-harassment policy, saying the policy -- which included non-vulgar, non-school-sponsored speech -- violated the First Amendment. Saxe v. State College Area School District (2001)

Agreed with the majority that a Pennsylvania law preventing school newspapers from accepting beer advertising was unconstitutional. He wrote, "If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment." The Pitt News v. Pappert (2004)

Harassment: public schools

Agreed with the majority in a ruling that held a school district failed to provide free education to a high school student because it did not protect him from bullying and taunting from fellow students, who harassed him because of his lack of athleticism and his perceived sexual orientation. Shore Regional High School Board of Education v. P.S., unnamed student (2004)

Fair trial: jury discrimination

Agreed with the majority granting a writ of habeas corpus to an African-American prisoner after state courts would not hear the testimony of a witness who said he heard a juror make racist remarks after the trial was over. Williams v. Price (2003)

Due process: drugs

Disagreed with a majority that ruled a state university violated a campus policeman's due process by suspending him without pay and without a hearing after he was arrested on drug charges. The U.S. Supreme Court reversed the case on other grounds but agreed with Alito's argument that the suspension had merit because of the seriousness of the allegations. Homar v. Gilbert (1996)

Freedom of religion

Agreed with the majority that Muslim police officers were wrongly fired for not shaving off their beards for religious reasons. The unanimous ruling said the state engaged in an unfair double standard.

Alito: "We cannot accept the department's position that its differential treatment of medical exemptions and religious exemptions is premised on a good-faith belief that the former may be required by law while the latter are not." Fraternal Order of Police v. City of Newark (1999)

Gun control

Disagreed with the majority that allowed the federal government to continue banning machine guns and certain assault weapons.

Alito wrote that states should have greater discretion in regulating private gun ownership. And he argued the federal law violated the Commerce Clause of the U.S. Constitution in light of the then-recently decided Supreme Court case U.S. v. Lopez, in which the justices struck down another law on the possession of guns near a school.

"Was United States v. Lopez a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power" and that the Commerce Clause did not apply here, he wrote. United States v. Rybar (1996)

Job discrimination

Disagreed with the majority favoring a hotel manager who said she had been discriminated against because she was African-American. The majority criticized Alito's dissent, saying Alito would have protected racist employers by "immuniz(ing) an employer 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." Bray v. Marriott Hotels (1997)

Disagreed with the majority who concluded a woman could sue the state for allegedly failing to accommodate her disability from a car accident. His fellow judges said Alito used an overly strict legal standard in dismissing the woman's claims. Nathanson v. Medical College of Pennsylvania (1991)

Agreed with the majority that a state employee could not sue his state employer for removing him from his job for taking medical leave. He concluded requiring employers to provide 12 weeks of medical leave was not a proper remedy for gender discrimination, characterizing it as a disproportionate remedy when compared to the harm at issue.

Alito: "Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause." Chittister v. Department of Community and Economic Development (2000)

Police searches

Disagreed with the majority that police in Pennsylvania were not entitled to qualified immunity after conducting a strip search of a drug suspect's wife and the couple's 10-year-old daughter. The court concluded the warrant did not specifically incorporate an affidavit requesting the search of all the home's occupants. Alito argued for a "reasonable" and "commonsense" approach to interpreting the intent of search warrants. Doe v. Groody (2004)

Prisoner rights

Disagreed with the majority that certain high-security prisoners could continue having access to personal photos and reading material. Alito argued corrections officials should have discretion in controlling "deterrence of future infractions." A Pennsylvania inmate claimed his free speech rights were being violated by the restrictive policies.

The Supreme Court has accepted this case for review and will hear oral arguments in March. Alito will almost certainly recuse himself if he is confirmed. Banks v. Beard (2005)

CNN's Xuan Thai contributed to this report.

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