Judge Samuel Alito isn't what he claims to be. And he's a lot more of a threat than the pundit class suggests. Yes, he's anti-abortion, and will swing the balance of the Supreme Court if he is confirmed to take the place of Justice Sandra Day O'Connor.
But Alito is more than a threat to women's right to choose. He's the standard-bearer for the new conservative order, seeking a return to state's rights and corporate rights over the rights of Congress.
President Bush repeats his mantra that this is a nominee who will just interpret the law, not try to make the law. But if that were the case, the right-wing choir of commentators wouldn't be out singing hosannas in his name. In fact, Alito's record as a judge doesn't show deference to the legislature, the branch of government elected by the people. It reveals, instead, a judge quite willing to use his position on the bench to enforce his own views, striking down laws that don't meet his approval. Alito is a right-wing judicial activist masquerading as a man of judicial restraint. He is the proverbial wolf in sheep's clothing.
Over the past weeks, the nation has paid fitting tribute to Rosa Parks and the civil rights movement that she helped to spark. But even as he praised Parks, President Bush nominated for the Supreme Court a judge who would reverse much of what she fought for.
When Rosa sat on that bus, Southern states claimed that they had the right to enforce segregation — legal apartheid — on African Americans. They argued that neither the Congress nor the courts had any right to interfere in their internal affairs. When the Supreme Court unanimously ruled in Brown v. Board of Education that "separate and equal" was unconstitutional, the leaders of segregation were outraged. They denounced the Supreme Court for "judicial activism," and campaigned to impeach Earl Warren, the chief justice nominated by Republican President Eisenhower. They blocked enforcement of the court's ruling and the laws of Congress. It took Parks' courage and the sacrifice and struggle of many to overcome this resistance.
Now, on the far right of American politics, comes a new movement proclaiming that the real Constitution has been "in exile" since the 1930s. They want to roll back not only the privacy doctrine on which women's right to choose rests, but the Warren Court's rulings and those of the Roosevelt court also. They would return the nation to the era of the Gilded Age, when unions were outlawed as a restraint on trade, when corporate regulation was routinely struck down as exceeding congressional power and when states' rights were exalted.
Alito is in that line. He voted to strike down a law passed by Congress restricting the transfer and possession of machine guns at gun shows. He argued that the Congress didn't have the power to regulate the sale of machine guns, without detailed findings — to be reviewed by the courts for adequacy — that there was a connection between the regulation of the transfer of machine guns and interstate commerce. I guess the judge assumed that terrorists with machine guns would just stay in one state, unlike everyone else in the country.
When it came to states' rights, there was no more fierce advocate than retiring Chief Justice Rehnquist. Yet, Alito makes Rehnquist look like a moderate. Alito ruled that the Congress had no right to require state governments to comply with the Family and Medical Leave Act for their employees (and by implication with any act regulating their employees). His willingness to legislate from the bench was overturned by the Supreme Court in an opinion written by none other than Chief Justice Rehnquist.
Rosa Parks' legacy stands in contrast to Alito's record. This is a judge who rejected an African American defendant challenging a verdict by an all-White jury purged of Black jurors because of their race. Alito mocked statistical evidence that showed the prosecutions' systematic exclusion of African Americans from juries, suggesting it was as meaningless as the fact that a disproportionate number of presidents had been left-handed.
Any judge that could write that is dangerously blind to the history of this country and numb to the responsibility of the court.
The Rev. Jesse Jackson Sr. is founder and president of the Rainbow/PUSH Coalition.
