Alito Prefers Scalpel to Sledgehammer

WSJ.com - Allies Hope Less-Combative Style Makes Judge More Effective in Moving Court to the Right By JESS BRAVIN
: "Judge Samuel Alito may agree on many issues with conservative Supreme Court Justices Antonin Scalia and Clarence Thomas. But President Bush's high-court nominee often has taken a different path toward similar legal conclusions, one that is more subtle and less dismissive of precedent. The administration hopes that tenor may ease his path to Senate confirmation, and, if confirmed, make him more effective in moving the law toward the right.

The approach was evident in a 1975 article Judge Alito, fresh out of law school, wrote about then-recent rulings that began to apply the Constitution's Equal Protection Clause to family law.

Seven years earlier, the high court had struck down, by a 6-3 vote, a Louisiana law barring illegitimate children from suing over the wrongful death of their parents. A series of decisions invalidating statutes that disadvantaged illegitimate children, hippie communes and others at society's margins followed. The Equal Protection Clause, by granting all people "equal protection of the laws," prohibits discrimination by state government institutions.

Since the Nixon and Reagan administrations, conservatives have yearned to overturn many of the Warren Court's equal-protection precedents. Nothing in the Constitution barred laws to "discourage formation of illicit family relationships," Justice William Rehnquist wrote in dissenting from a 1972 ruling that found it unconstitutional to exclude illegitimate children from collecting workman's compensation for their father's death.

Judge Alito approached things differently. In his 23-page article, "Equal Protection and Classifications Based on Family Membership," he offered conservatives a novel way to read the jurisprudence as consistent with "the state's interest in promoting the traditional family." The approach appeared to respect the precedents while denying them the impact that some legal authorities -- including, perhaps, the justices themselves -- expected.

Judge Alito made no secret of his opposition to Warren Court opinions in areas such as police misconduct and religious freedom. In a 1985 Justice Department job application, released this week, he supported Attorney General Edwin Meese's campaign to reverse many decisions the court handed down during the 1950s and '60s, when it aggressively enforced individual rights under constitutional provisions concerning free speech, due process and equal protection.

His 1975 article, however, reveals a conservative with a different style from Justices Scalia and Thomas.

Judge Alito "massages the precedents to make them say what he wants them to say. That's a very different aesthetic than Scalia," says Prof. Robert Post of Yale Law School, a former clerk to the liberal Justice William Brennan. Judge Alito's "sensibility is not to beat up the Warren Court as illegitimate, but to get what he wants out of the Warren Court."

Similarly, critics say, Judge Alito's recent opinions have asserted an allegiance to precedent -- even when reaching a more conservative outcome than the Supreme Court later would accept. That approach could lead to readings of liberal precedents, such as the 1973 Roe v. Wade opinion upholding abortion rights, that diminish their scope without explicitly overruling them.

Judge Alito's "Equal Protection" ran in the Dickinson Law Review between his graduation from Yale Law School and his clerkship at the Third U.S. Circuit Court of Appeals in Philadelphia, where he has sat as a judge since 1990.

The Justice Department cautioned against reading too much into the article. Rachel Brand, the assistant attorney general for legal policy, said it simply shows "a good smart lawyer trying to harmonize seemingly inconsistent precedents."

The starting point for the article was a 1968 case, Levy v. Louisiana, that followed the hospital death of an unwed mother of five children. The Louisiana Court of Appeal upheld the statute denying Louise Levy's children damages. "Denying illegitimate children the right to recover in such a case is actually based on morals and general welfare because it discourages bringing children into the world out of wedlock," Judge Louis Yarrut explained. The Equal Protection Clause applied only to "race, color or creed," he wrote.

Civil-rights lawyers, eager to expand equal-protection doctrine, seized on the case. "And in a context where what Louisiana did was, in my opinion, morally indefensible, the Supreme Court broke new ground," says Norman Dorsen, who argued the case for the American Civil Liberties Union and now is a law professor at New York University.

Judge Alito acknowledged that some viewed "these family membership cases as potentially revolutionary," if not "perplexing." But the rulings "can be reconciled" if seen as balancing three interests: that of children "not being disadvantaged by their illegitimacy," "individuals in freely choosing their family structure" and the state "in promoting the traditional family."

Carefully read, the Levy opinion "did not indicate that the illegitimate children's interest was weightier" than "the state's interest in promoting the traditional family," he wrote. Instead, since the state's discrimination "poorly served" that goal, it was unnecessary to assess whether it was outweighed by the children's interest.

Thus, he argued, the opinion was consistent with a 1971 inheritance case, Labine v. Vincent, which found it constitutional to disinherit illegitimate children when their parents died without a will -- one of few "equal protection" cases that liberals lost in that era. There, a legislative presumption that "the average father preferred his legitimate children to his acknowledged illegitimate children" coincided with promoting "the traditional family by preserving more of the estate for the widow and the legitimate children."

But that analysis overlooked the fact that the contrary outcomes corresponded with a seismic change on the court. Two members of the Levy majority -- Chief Justice Earl Warren and Justice Abe Fortas -- had retired, and their Nixon-appointed successors joined the Levy dissenters to reach the 5-4 Labine decision.

In general, Judge Alito argued that when the court struck down a family classification law, it was because the law failed to promote traditional families in the first place. Even in the hippie-commune case nullifying a law that cut households of unrelated individuals out of the Food Stamp program, Judge Alito asserted that the Supreme Court actually had ruled to protect traditional families.

The activist lawyers who brought the case selected sympathetic clients such as an impoverished mother of a deaf child who moved into another poor woman's house to save money. Thus, the antihippie law, "far from aiding traditional families, deprived many of them of sustenance because charity or economic necessity impelled them to live with one or more unrelated individuals," he wrote.

Prof. Post calls this analysis "a determined reconstruction in the service of a goal," rather than an accurate reading of precedent. "He gets to his result by systematically reading out what any normal person would see is a central purpose of these statutes."

But Judge Alito's admirers say the article shows his respect for precedent, proving him a conservative, but no counterrevolutionary.

"This was an area of law that was undergoing radical change, and Sam was saying there's an intellectually consistent way," to read the new doctrines in line with traditional values, says Mark Levy, who as a law student worked with Judge Alito on the Yale Law Journal (and is no relation to the Louisiana plaintiffs). "We can't say if Sam had been on the Supreme Court at the time he would have agreed with Rehnquist," says Mr. Levy, now of the Washington law firm Kilpatrick Stockton LLP. "And if Justice Rehnquist wrote a law-review article at the time, this is not the article he would have written.""