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January 9, 2006
Will Sam Alito Respect Earlier Opinions With Which He Disagrees?
(This is a repost of an item originally posted here on 11/1/05.)
People trying to figure out how respectful Sam Alito will be as a Supreme Court justice to prior Supreme Court decisions (can you say "Roe v. Wade?" I knew you could.) will want to take a very close look at two decisions of the U.S. Court of Appeals for the Third Circuit: ACLU v. Schundler (1997) and ACLU v. Schundler (1999). The second of them, which Alito wrote for a divided Third Circuit panel, suggests a judge who is quite eager to brush aside earlier opinions with which he disagrees.
Both opinions grew out of the same case, an effort by the ACLU to block Jersey City from placing a creche and a menorah, along with some seasonal decorations, in front of City Hall. The ACLU's claim was that the display violated the First Amendment's Establishment Clause.
Jersey City argued in federal district (that is, trial) court that the display complied with the Constitution (as interpreted in a number of Supreme Court decisions) because the sleigh and the Santa Claus and the Frosty the Snowman and the Kwanzaa ribbons that it added to the creche and the menorah "demystified" thtose two religious symbols--that is, drained them of their religious meaning.
In the first of the two Third Circuit opinions, a panel of three judges (Nygaard (Reagan appointee), Lewis (GHW Bush appointee) and McKee (Clinton appointee)) held that the district court erred in its "demystification" analysis, spelled out the correct analysis, stated that it did not see the supposedly secular additions to the display as stripping the display of its message endorsing religion, and remanded the case to the district court to apply the correct analysis.
The district court did just this, following the Third Circuit's instructions.
Jersey City again appealed. This second time, the case came before a mostly different panel: Judge Nygaard (Reagan appointee) was on it again, but now he was joined by Judges Rendell (Clinton appointee) and Alito (GHW Bush appointee).
Over a strong dissent by Judge Nygaard, Judge Alito upheld the display. Although the earlier panel had been quite clear in saying that Frosty and the sleigh and the Kwanzaa ribbons did not defeat the display's message of religious endorsement, Judge Alito characterized that as "dictum" in the earlier opinion (that is, legally non-binding commentary, rather than legally binding precedent), and concluded that the supposedly secular doo-dads in the display actually did make the display satisfy the First Amendment.
Judge Nygaard was, to use a piece of appellate technical jargon, "pissed." "This constitutional about-face in the same case," he said, "troubles me greatly, strikes to the core of the legitimacy of our jurisprudence, and exposes us to well-earned criticism for inconsistency and for giving insufficient respect to an earlier instruction by the Court." Judge Nygaard was of the view that only the Third Circuit en banc (that is, all of its members together, as opposed to just a panel of three) could set aside an earlier panel's opinion like this.
As a technical matter, Judge Alito may have been right that the first panel phrased its analysis in a way that turned its sharp condemnation of the Jersey City display into dictum. The condemnation was, however, so clear (and unanimous) that surely Judge Alito could have chosen to honor it, or pressed for en banc consideration of the case, rather than just pushing it aside and replacing it with his own vision of the right outcome under the Establishment Clause.
If Senators are interested in understanding how Sam Alito thinks about how much deference a court's earlier pronouncements deserve, they should question him closely about what it was that led him to choose to abandon the clearly expressed, unanimous view of an earlier panel in the same case, rather than honoring it or seeking the ruling of the entire Third Circuit sitting en banc.
Posted by Eric at January 9, 2006 11:49 PM
Comments
A Supreme Court Justice does not have to follow precedent. Actually, he shouldn't if the precedent is wrong, like Earl Warren did with Brown vs. Board of Education. This is exactly why we have to filibuster Alito. He is a right wing extremist whi is proven to have ruled with his personal views on the Third Circuit Appellate Court. Call your senators and tell them to vote NO on Alito, and FILIBUSTER. You have a voice, use it...NOW.
Posted by: Fiona at January 10, 2006 12:15 PM