Alito The Judicial Activist

Supreme Court nominee Samuel Alito has captured the hearts of the right
wing. President Bush introduced him to the American people as a man who
has "a deep understanding of the proper role of judges in our society
[and] that judges are to interpret the laws, not to impose their
preferences or priorities on the people." Sen. Bill Frist (R-TN) said
on Fox News that Alito has "shown judicial restraint in the past," and
the Heritage Foundation's Ed Meese noted that this nominee has "shown
careful and consistent fidelity to the Constitution and laws as
written." But the right wing's spin won't hold up for long. Lawrence
Lustberg, a New Jersey criminal defense lawyer who has known Alito
since 1981, described him as "an activist conservatist judge. He's very
prosecutorial from the bench. He has looked to be creative in his
conservatism." Legal scholar Jeffrey Rosen asserted that Alito has been
a "conservative activist" whose "lack of deference to Congress is
unsettling." Alito's past decisions show that as a Supreme Court
justice, he will not hesitate to actively overstep judicial boundaries
to further right-wing ideology, just like Supreme Court Justices
Clarence Thomas and Antonin Scalia have done.

ALITO TOOK CONGRESS'S COMMERCE POWER, GAVE PUBLIC MACHINE GUNS: In
1996, Judge Alito was the sole dissenter on the Third Circuit Court of
Appeals in U.S. v. Rybar where his colleagues upheld Congress's right
to ban fully automatic machine guns. Alito argued that Congress had no
power under the Commerce Clause to enact such a law. But he did not
stop there. He further demanded that "Congress be required to make
findings showing a link between the regulation and its effect on
interstate commerce, or that Congress or the president document such a
link with empirical evidence." The majority sharply disagreed with
Alito: "We know of no authority to support such a demand on Congress"
and the requirement would essentially require the federal government to
"play Show and Tell with the federal courts." Alito is willing to
overstep the separation of powers and actively limit Congress's
interstate commerce power, which is at "the heart of a vast number of
civil rights laws, discrimination laws and worker protections."

ALITO STRUCK DOWN FAMILY MEDICAL LEAVE ACT: The Family Medical Leave
Act (FMLA) "guarantees most workers up to 12 weeks of unpaid leave to
care for a loved one." In the 2000 case Chittister v. Department of
Community and Economic Development, Alito used his judicial position to
"prevent the federal government from enforcing civil rights
protections." Alito held that Congress overstepped its authority under
the Fourteenth Amendment and therefore had no power to require
employers to comply with the FMLA. But the only one who overstepped
authority was Alito. In 2003, the late Chief Justice William Rehnquist
led the majority that overturned Alito's reasoning. "The Supreme Court
decided that even its own path down the road of limiting Congress's
power would not go so far," said Goodwin Liu, a law professor at the
University of California, Berkeley.

ALITO WEAKENED EXISTING ANTITRUST AND DISCRIMINATION LAWS: Alito has
shown a willingness to push the boundaries of the law for the benefit
of corporate interests. In the 2001 case, LePage's v. 3M Corp. Alito
sided with the 3M Corp, arguing that its bundling techniques did not
violate the Sherman Antitrust Act. Judge Sloviter, the sole dissenter
on the 3-person panel, argued that Alito's decision would "weaken
Section 2 of the Sherman Act to the point of impotence," in addition to
weakening marketplace competition. (The Third Court eventually heard
the case en banc and sided with Sloviter, in a 7-3 decision.) In Bray
v. Marriott Hotels (1996), Marriott sought to deny the plaintiff, an
African-American woman, the right to present her case of racial
discrimination. Alito sided with Marriott, while the majority siding
with Bray criticized Alito for overstepping his judicial role and
"acting as a factfinder [and] taking it upon himself to interpret the
meaning of the deposition testimony of one of the defendants." "Title
VII would be eviscerated if our analysis were to halt where the dissent
suggests," wrote the majority. Alito's willingness to change
legislation at all levels of government show "that there's a real
chance that he will, like Justice Scalia, choose to make law rather
than interpret law," said Sen. Charles Schumer (D-NY).