Alito Respectful of Precedent, Associates Say

By Charles Lane
Washington Post Staff Writer
Sunday, November 6, 2005

For 15 years as a federal appeals court judge, Samuel A. Alito Jr.'s job has been to follow the precedent of the Supreme Court. But if he is approved for the nation's highest court, he would not have to.

As one of the nine final arbiters of American law he could vote to overturn long-standing decisions on abortion, affirmative action and religion -- with nothing to stop him except stare decisis , the legal principle that, for the sake of stability, courts should generally avoid undoing their past rulings.

But Alito's associates and independent legal analysts who know his record say a Justice Alito would be reluctant to use that power, even in such areas as abortion, in which the court's past rulings are most controversial.

"If he learned anything from me, he learned the value of stare decisis ," said Judge Leonard I. Garth, a Nixon appointee on the U.S. Court of Appeals for the 3rd Circuit for whom Alito, 55, served as a law clerk in 1976-77 -- and later joined as a colleague on the court.

But Garth added: "If what you're thinking is 'Would Sam overrule Roe ?' -- he would not. He might have restrictions and limitations, but it is a precedent he'd honor. As a previous mentor and as a present colleague, I don't think he'll overrule it."

If that assessment proves valid, Alito would not be in the mold of Justice Clarence Thomas, the court's most conservative member, who has advocated revisiting a wide range of past cases he views as inconsistent with the Constitution. Nor would he be a carbon copy of conservative Justice Antonin Scalia, who has fewer quarrels with established doctrine than Thomas does, but who would overrule Roe v. Wade , the 1973 abortion-rights decision.

Liberal critics of the Alito nomination are skeptical. They note Alito once interpreted an ambiguous Supreme Court precedent to uphold a Pennsylvania law that a married woman must notify her husband before getting an abortion. And they say that President Bush named the Yale Law School graduate after his first choice, White House counsel Harriet Miers, withdrew under fire from social conservatives.

"I think they are honestly trying to find someone who will overturn Roe v. Wade , and the history of the Miers nomination shows that," said Marcia Greenberger, co-president of the National Women's Law Center, which supports abortion rights.

Unquestionably, the power to reverse precedent is among the most awesome the court possesses, as the court itself has often recognized.

In reaffirming Roe in 1992 by a 5 to 4 vote, the Supreme Court relied heavily on stare decisis . The court said that even if the decision was not perfect in its original form, reversing its essential holding would be too disruptive to a society accustomed to thinking of abortion as a right.

Nevertheless, the court has shown that stare decisis is not an inviolable command. The 1954 Brown v. Board of Education decision ordered school desegregation, striking down the "separate but equal" rule the court had established in Plessy v. Ferguson 58 years earlier.

And in 2003, the court struck down all state laws against private consensual sodomy, explicitly overruling its 1986 decision that said states could criminalize homosexual acts.

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