The Alito Memo
SUPREME COURT nominee Samuel A. Alito Jr.'s now-famous 1985 memorandum is unsettling. The memo, part of an application for a political appointment in the Justice Department during the Reagan administration, reveals an energetic young conservative driven by discontent with important (and, in our view, beneficial) Supreme Court rulings and eager to alter the lay of the legal land. Mr. Alito describes his early conservatism as "motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause and reapportionment." He describes being "particularly proud" at helping to advance legal positions "in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."
Judge Alito has put some distance between himself and the memo in the days since its release, particularly on abortion, but it has rightly discomforted some moderates whose support he will need. Unlike the memos that Chief Justice John G. Roberts Jr. wrote while in the Justice Department, this application represents Judge Alito's views and can't be dismissed as the work of a lawyer on behalf of a client. Senators should not hesitate to question Judge Alito about the views expressed then and the extent to which they coincide with his views today.
Judge Alito was 35 when he wrote the memo, and his views may have changed in the succeeding two decades. Moreover, while the memo may shed light on his views of decisions by the courts headed by chief justices Earl Warren and Warren E. Burger, it does not reveal whether he would seek to overturn them now. Barely a dozen years after it came down, Roe v. Wade presented a different legal question in 1985 than it does now after the Supreme Court's subsequent decision reaffirming its central holding. It has now stood as good law for a generation. Many conservatives who opposed the Warren Court's revolution in criminal procedure or its reapportionment cases have since made an uneasy peace with them.
Judge Alito has a 15-year record as a judge that is more recent and perhaps more predictive of his likely handling of hot-button cases. But his rulings as an appeals court judge, where he is bound to follow Supreme Court precedent, also have limits as predictors of how he would behave when free to set precedent. In his January hearings, Judge Alito will rightly be asked about both aspects of his record.