Great Minds, Not Quite Alike
Supreme Court Justice Sandra Day O'Connor and Judge Samuel Alito have often--but not always--been at odds on key legal issues.
ABORTION
Planned Parenthood v. Casey. In a law restricting abortion rights, Pennsylvania legislators required married women seeking abortions to notify their husbands, which the Third Circuit found unconstitutional.
ALITO (in dissent): Those opposed to the rule "failed to show even roughly how many . . . women in this small group would actually be adversely affected . . . ." On appeal, the Supreme Court reaffirmed the right to an abortion, ruling that the spousal notification rule placed an "undue burden" on women.
O'CONNOR (with majority): Spousal notification "embodies a view of marriage consonant with the common law status of married women, but repugnant to this Court's present understanding of marriage and of the nature of the rights secured by the Constitution."
FAMILY and MEDICAL LEAVE ACT
Chittister v. Department of Community and Economic Development. The Third Circuit ruled that a fired state employee whose FMLA rights were violated could not sue because Congress did not have the constitutional power to require states to comply with the act.
ALITO (for majority): "[T]he FMLA provisions at issue here do not represent a valid exercise of Congress's power . . . ."
Nevada v. Hibbs. In a ruling that nullified Chittister, the Supreme Court said a state employee who believed his FMLA rights were violated could sue in federal court for monetary damages.
O'CONNOR (with majority): Congress "acted within its authority . . . when it sought to abrogate the States' immunity for purposes of the FMLA's family-leave provision."
DEATH PENALTY
Rompilla v. Horn. A death row inmate claimed his legal counsel was inadequate, failing to present mitigating evidence during his murder trial. The Third Circuit found that, as Alito put it, although more resourceful lawyers might have pursued such evidence more aggressively, the lawyer was adequate.
ALITO (for majority): "[W]hile we may hope for the day when every criminal defendant receives that level of representation, that is more than the Sixth Amendment demands." The Supreme Court reversed the ruling.
O'CONNOR (with majority): "Today's decision simply applies our long-standing case-by-case approach to determining whether an attorney's performance was unconstitutionally deficient. . . ."
RELIGIOUS LIBERTY
ACLU v. Schundler. The Third Circuit ruled constitutional a city's holiday display because it included both secular and religious symbols. Alito cited a previous O'Connor ruling in his decision.
ALITO (for majority): "The Supreme Court's decisions regarding holiday displays have been marked by fine line-drawing."
County of Allegheny v. ACLU. O'Connor ruled unconstitutional displays with clear religious purposes.
O'CONNOR (with majority): "If government is to be neutral in matters of religion . . . government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents."
GUN CONTROL /CONGRESSIONAL POWER
U.S. v. Rybar. The Third Circuit ruled Congress could prohibit the possession of machine guns under the commerce clause.
ALITO (in dissent): "We are left with no congressional findings and no appreciable empirical support for the proposition that the purely intrastate possession of machine guns . . . has a substantial effect on interstate commerce."
U.S. v. Lopez. The previous year, O'Connor had joined a five-justice majority that, on commerce clause grounds, struck down a federal ban on possessing guns near schools.
O'Connor (with majority): "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce."
This story appears in the November 14, 2005 print edition of U.S. News & World Report.
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