3
Nov
2005

The Supreme Court, the ACLU, and Judge Alito's Record

The ACLU participates in more cases before the Supreme Court than anyone besides the U.S. government itself.

Every time we step into that courtroom, fundamental freedoms are on the line. That will certainly be true later this month when ACLU attorney Jennifer Dalven, Deputy Director of our Reproductive Freedom Project, will step before the Justices of the Supreme Court to argue Ayotte v. Planned Parenthood of Northern New England.

With a decision in the Ayotte case, the Supreme Court could revoke the long-established principle that abortion restrictions must include exceptions to protect a woman's health. This is the first abortion-related case to reach the Court in five years -- and it will probably be the last time the ACLU argues a case before Justice Sandra Day O'Connor.

Justice O'Connor has provided more than a swing vote on the Court. She has been a moderating voice on critical civil liberties issues ranging from race to religion to reproductive freedom. We cannot know for certain how Judge Alito would vote in Ayotte or any other case, but there is no question that this nomination calls into question the delicate balance that Justice O'Connor has helped to shape and preserve.

For example, in Planned Parenthood v. Casey, Judge Alito voted to uphold a state law provision that required women to notify their husbands before having an abortion. Justice O'Connor joined with a majority of the court in rejecting his position. In addition, Judge Alito has been more willing to support state-sponsored religious displays than Justice O'Connor. And he has written several dissenting opinions on the Third Circuit Court of Appeals that, if accepted, would have not only made it more difficult for victims of discrimination to prevail in bringing a suit, but would have made it more difficult for them to even get their case to a jury.

Other troubling positions in Judge Alito's record includes:

* Upholding the strip search of a mother and her ten-year old daughter, even though the warrant allowing the search did not name either of them.

* Holding that Congress does not have the power under the Commerce Clause to restrict the transfer and possession of machine guns at gun shows.

* Holding that Congress did not have authority to require state employers to comply with the Family and Medical Leave Act.

Make no mistake about it. As the Senate considers the Alito nomination, we are at a pivotal moment in our nation's history. The Bush Administration is claiming unprecedented national security powers, reproductive rights are in jeopardy, the teaching of evolution is under attack, and we continue to struggle with a legacy of discrimination.

The Supreme Court's role as the ultimate safeguard of our constitutional liberties has never been more critical. With that stark reality in mind, the ACLU will, in the weeks ahead, compile a complete report on Judge Alito's civil liberties record, including the good and the bad. And, with your help, we will make sure each and every Senator understands that record and acts on his or her obligation to protect the Supreme Court's vital position in our constitutional democracy.

We'll be counting on your support every step of the way.

Sincerely,

Anthony D. Romero
Executive Director American Civil Liberties Union

Read more about the ACLU's Supreme Court cases at
//www.aclu.org/Court/CourtMain.cfm .

Learn about Ayotte v. Planned Parenthood of Northern New England at

//www.aclu.org/court/court.cfm?ID=19130&c=317 .
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