Judge Alito on Civil Rights

SUPREME COURT nominee Samuel A. Alito Jr.'s most important civil rights decisions collectively show an inclination to protect businesses from marginal civil rights claims and to make it more difficult for those who say they were discriminated against to win redress in the courts. In several prominent cases, Judge Alito has displayed a more skeptical attitude than have his colleagues toward claims of race and gender discrimination and has tended to embrace narrow readings of important federal anti-discrimination laws.

In one race discrimination case dissent, for example, Judge Alito would have set a troublingly high burden for a plaintiff passed over for a promotion when the employer claimed to have been seeking the "best" candidate for the position. His opinion, as the majority noted, seemed to ignore the fact that racial hostility can easily influence one's view of who is, in fact, best. In another case, he was the lone judge to argue for keeping a gender discrimination case from a jury; in that case, though, the Supreme Court later adopted a view of the question arguably closer to his than to the majority's. In a death penalty case in which the convict argued that the prosecution had improperly struck blacks from a jury pool, Judge Alito was blithely dismissive of statistical evidence of black jurors being excluded in the Delaware county at issue.

As is the case in much of Judge Alito's work, his opinions in these cases are carefully crafted efforts to apply precedent and statute. In none does he run wildly off the rails. But he does seem, where there is play in the legal joints, to push the law toward greater skepticism of civil rights lawsuits -- except, that is, when he doesn't.

Indeed, Judge Alito has not been a predictable opponent of civil rights plaintiffs. He seems to adopt a more solicitous approach to claims of religious bias. He wrote a strong opinion in the case of an Orthodox Jewish woman who alleged she had been pushed out of a college teaching job because of her religious practice. He also ruled for Muslim police officers in Newark who challenged their department's ban on beards.

And he has sided with civil rights plaintiffs in cases involving race. He dissented from a decision barring a race bias lawsuit because of a statute of limitations -- not what you would expect from a judge unblinkingly keen to protect businesses from civil rights litigation. He has voted to overturn convictions because of racial manipulations of juries. And he declared unlawful the search of a car whose driver had been stopped because police were looking for two black men driving a black sports car following an armed robbery; such vague knowledge, he wrote, "could not justify arrest [of] any African-American man who happened to drive by in any type of black sports car."

Judge Alito, in short, has sometimes taken a narrower view than we believe healthy of statutory civil rights protections, but his record does not support the frequent descriptions of him as a knee-jerk reactionary. The question for senators considering the nomination is how his instincts would translate into performance on the high court, where the justices have greater latitude to construe protections narrowly than do circuit judges. This is an area where senators should question him closely.