Strengthening Constitutional Self-Government

No Left Turns

Alito’s record

It’s hard to know what to make of the evidence presented in this article, which examines Judge Alito’s position in 3rd Circuit decisions where the panel was divided. It strikes me as a mistake to attempt to characterize his position by looking only at these cases, unless of course one is trying to emphasize the aspect of his profile that is most potentially controversial, and least readily assimilable to a judicial "mainstream." The reporters argue that these cases are most closely akin to the sorts the Supreme Court would hear, and hence presumably are the best predictors of how he’d vote. I’d reply, first, that there’s no better predictor of how he’d vote than his entire record.

That this article is tendentious also emerges from a consideration of its presentation of his First Amendment religion clause jurisprudence. The reporters focus on two cases--ACLU v. Schundler, a holiday display case, and C.H. el rel Z.H. v. Oliva, a case involving religious expression in a public school.

Here’s what they have to say about the two cases:

Alito has agreed consistently with people who are trying to expand the role of religion in public life, the analysis shows.


Three cases in the analysis deal with the boundaries between church and state, and Alito’s decisions parallel about a dozen other -- unanimous -- cases he has heard that were not examined by The Post, said Ira C. Lupu, a constitutional scholar at George Washington University Law School.

Alito’s views differ from those of most appellate judges and all the current members of the Supreme Court, Lupu said, because "he is on the side of whoever is trying to include or advance a religious message." Alito has taken a narrow view of the First Amendment’s establishment clause, which forbids the government to sponsor any religion, and an expansive view of its free-exercise clause, which protects people’s rights to worship as they want.


In an establishment-clause case in the analysis, American Civil Liberties Union of New Jersey ex rel. Lander v. Schundler , Alito wrote a 1999 majority opinion upholding the constitutionality of a holiday display in front of City Hall in Jersey City. A lower court had banned the display a few years earlier, when it featured a Hanukkah menorah and a Christmas tree. Two weeks later, the city put it back up with changes, adding a large plastic Santa Claus, Frosty the Snowman, a red sled and Kwanzaa symbols.


Alito said the secular additions "demystified" the religious symbols and made the display legal. In a dissent, Judge Richard Lowell Nygaard, a Reagan appointee, wrote that the "addition of a few small token secular objects is not enough to constitutionally legitimate the modified display."


In a free-exercise case, Alito sided with a boy named Zachary Hood in Medford, N.J., who, as a kindergartner, made a poster on which he had drawn a picture of Jesus as an example of something he was thankful for. In first grade, when allowed to bring a book to read to class, he brought "The Beginner’s Bible: Timeless Children’s Stories."


The court’s majority ruled in favor of the school system and teachers, who removed the boy’s poster from a wall and forbade him to read the Bible stories to his class. Alito dissented, writing that "discriminatory treatment of the poster because of its ’religious theme’ would violate the First Amendment." He reasoned that "public school students have the right to express religious views in class discussion or in assigned work, provided that their expression falls within the scope of the discussion or the assignment."

With respect to the Schundler case, the reporters omit two important facts. First, the ACLU declined to pursue an appeal to the Supreme Court, in large part because they didn’t think they could get a better result. Judge Alito was simply and straightforwardly applying the precedent developed in Lynch v. Donnelly. Second, the other judge voting with Alito was Marjorie Rendell, the wife of now-Pennsylvania Governor Ed Rendell. In this case, Alito occupies the broad (if flawed) middle.

In the second case, which involves a child’s response to an assignment, Alito’s dissent echoes the guidelines about religious expression in the schools developed by the Clinton Administration. To wit:

Students may express their beliefs about religion in the form of homework, artwork, and other written and oral assignments free of discrimination based on the religious content of their submissions. Such home and classroom work should be judged by ordinary academic standards of substance and relevance, and against other legitimate pedagogical concerns identified by the school.

Once again, he’s in the broad middle.

What’s left is Ira Lupu’s opinion, which ought to carry some weight, given his prominence in First Amendment religion clause matters. But here’s what Lupu said about Alito in the immediate aftermath of his nomination. First,
to the Baptist Standard (11/04/05):

Chip Lupu, a church-state expert and law professor at George Washington University, said of Alito, "I don’t think this guy is any radical on church-state issues." However, he added, "I don’t think he’s going to be an O’Connor clone."


Lupu and his George Washington colleague, Bob Tuttle, said Alito’s rulings seem to indicate he is open to some public displays of religious items, but his rulings have not departed greatly from Supreme Court precedent in that area.

Then to a reporter for
the Roundtable on Religion and Social Welfare Policy (11/01/05):

"In general, he seems especially receptive to claims of free exercise of religion, and to claims of equal access of religious speech to the public forum," Lupu said. "But none of his opinions look or sound appreciably different from those written or joined by Sandra Day O’Connor, and she remains a moderate separationist on funding cases.

Lupu is a liberal and I wouldn’t expect him to agree with Alito, but he seems to have moved from regarding him as part of the "conservative mainstream" to presenting him as an outlier, unlike any current Supreme Court Justice and most appeals court judges. Has he been misquoted by the Post? Has he changed his mind? Or are the stakes simply too high for him not to support the liberal party line?

Discussions - 2 Comments

Dear Joe, just wanted to let you know that someone is reading your posts - and profiting from them. Keep up the good con law work! And happy holidays.

Joe -- I don’t think my various comments on Alito are inconsistent with one another. Alito is like O’Connor on the issues where both have written, although I don’t think that SOC would have joined the dissent in that graduation prayer case. So he may be slightly more favorable to both private religious expression (where I tend to agree) and public religious expression (where I don’t) than SOC. Thanks for mentioning me, but it might show more intellectual sophistication not to use reductionist labels like "liberal" for scholars whose thought does not fall neatly and predictably along ACLU or Democratic Party lines (which I assure you mine does not -- I never opposed Alito’s confirmation, though I would have preferred Mike McConnell for this seat).

Chip Lupu

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