In furtherance of the clearinghouse function and
with the help of my assistant I have examined the civil
rights-related opinions of Judge Samuel Alito as well as his
record as an advocate in the context of prevailing civil rights
jurisprudence. This was done by reviewing the opinions in all
of the civil rights-related cases in which Judge Alito
participated while on the Third Circuit Court of Appeals and by
examining every civil rights-related case in which Judge Alito
was involved as an advocate before the Supreme Court.
Our examination reveals that Judge Alito’s
approach to civil rights issues is consistent with generally
accepted textual interpretation of the relevant constitutional
and statutory provisions as well as governing precedent. His
opinions evince appreciable degrees of judicial precision,
discipline, modesty and restraint and are consistent with a
judicial philosophy that insists that judges properly confine
themselves to the adjudication of the case before them and not
legislate broadly or administer the law generally in deciding a
case. In short Judge Alito’s record on civil rights-related
issues is exemplary: precise, legally sound, intellectually
honest and with an understanding and appreciation for the
historical bases for civil rights laws.
Our examination also underscores that some
aspects of Judge Alito’s record on civil rights have been
mischaracterized and many of the criticisms are misplaced.
Three brief examples:
First, some have claimed that Judge Alito has a
regressive view of affirmative action, one to the extreme right
of Justice Sandra Day O’Connor. Perhaps the most frequently
cited criticism of Judge Alito’s analysis of affirmative action
pertains to the three affirmative-action cases in which Judge
Alito participated (on brief) during his tenure in the Reagan
Administration’s Solicitor-General’s Office — Wygant v.
Jackson Board of Education, Sheet Metal Workers v. EEOC,
and Firefighters v. Cleveland (all involving expansive
racial preferences as remedies for discrimination).
Notwithstanding the fact that positions espoused as an advocate
for a particular Administration are poor proxies for
interpretive doctrine, there is scant evidence that as a Supreme
Court Justice, Judge Alito would restrict affirmative action
remedies currently available under United Steelworkers v.
Weber, Johnson v. Transportation Agency or
Grutter v. Bollinger more than would Justice O’Connor. In
all three cases, Judge Alito essentially argued that rigid
quotas are unlawful and that preferences based solely on race or
ethnicity must, at a minimum, be based on the beneficiary’s
status as an actual victim of discrimination. Even if Judge
Alito’s advocacy positions in these three cases were somehow
probative of his interpretive doctrine as a judge, it is
interesting to note that his positions were not substantially
dissimilar from those of Justice O’Connor.
For example, in Wygant v. Jackson Board of
Education, the issue was whether the equal-protection clause
of the Fourteenth Amendment permits a public entity to grant
certain public employees preferential protection against layoff
solely on the basis of race or national origin where there is
neither a finding nor evidence that the employees have been
discriminated against by such entity. Judge Alito argued that
such a layoff provision violates the equal-protection clause,
failing to withstand strict scrutiny. Justice O’Connor agreed.
In Sheet Metal Workers v. EEOC, the issue
was whether, in crafting remedies under Title VII, a court may
award preferences based solely on race or ethnicity, rather than
on the beneficiary’s status as an actual victim of
discrimination, and whether such remedies are unconstitutional.
The case also contained myriad important sub-issues. In
Sheet Metal Workers, Justice O’Connor did not hold in favor
of Judge Alito’s general advocacy interest, but was favorably
disposed to Judge Alito’s position regarding the issue of rigid,
over-inclusive racial preferences as a remedy for non-victims
under Title VII.
In Firefighters v. The City of Cleveland,
the issue was whether a judgment entered with the consent of a
defendant public employer in an action brought under Title VII
may award racial preferences and promotions to persons who are
not the actual victims of such employer’s discriminatory
conduct. Judge Alito argued in the negative. In that case,
Justice O’Connor disagreed with Judge Alito’s advocacy interest.
Again, even if Judge Alito’s advocacy positions
are predictive of his judicial decisions, the record described
above fails to demonstrate extreme doctrinal differences with
Justice O’Connor on affirmative action. Rejection of quotas and
expansive racial preferences does not evince hostility toward
affirmative action, let alone civil rights in general.
Judge Alito’s measured and restrained approach to
racial preferences and affirmative action is exhibited in his
record on the Third Circuit. In Judge Alito’s only
affirmative-action case involving race, Taxman v. Board of
Education of the Township of Piscataway, he joined eight
Third Circuit judges in holding that a school board violated
Title VII when it used its affirmative action plan to grant a
non-remedial workforce preference by laying off a teacher in
order to promote racial diversity. (It should be noted that the
Clinton Justice Department concurred with the majority
position.)
Judge Alito’s approach to affirmative action, as
well as other civil-rights issues, is methodical and precise,
producing closely circumscribed opinions respectful of the
interests of civil-rights claimants without compromising
precedent or the rule of law. Judge Alito opposed unlawful
racial quotas or racial set-asides untethered to a showing of
discrimination. He declined to promote personal policy
preferences.
Second, it has been asserted that Judge Alito
erects extraordinarily high standards for Title VII plaintiffs.
Some critics have cited Judge Alito’s dissent in Bray v.
Marriott as evidence of his tendency to impose “almost
impossible evidentiary burdens” upon plaintiffs in Title VII
cases. But a review of Bray actually shows that Judge
Alito’s dissent steadfastly adheres to precedent and carefully
applies the law to the facts, while the majority opinion
departed from the well-established burden of proof required of a
Title VII plaintiff.
The Title VII burden-of-proof framework set forth
in McDonnell Douglas v. Green and its progeny is
well-established:
A. To establish a prima facie case
of unlawful discrimination, a plaintiff must establish that he
or she
1. is a member of a protected class;
2. applied for and was qualified for the
job opening in question;
3. was rejected; and
4. after rejection, the job remained open
and the employer continued to seek applicants to fill it.
B. Once a plaintiff establishes a
prime facie case, the burden of production shifts to
defendant to articulate a legitimate, non-discriminatory reason
for plaintiff’s rejection. It is important to note that the
burden of production is not a burden of proof, i.e.,
defendant is not required to prove that its articulated reason
was, in fact, the basis for plaintiff’s rejection. Rather, the
defendant is required to produce evidence that there was a
nondiscriminatory reason for plaintiff’s rejection. The burden
of proving discrimination always remains with plaintiff.
C. If defendant proffers a legitimate,
nondiscriminatory reason for plaintiff’s rejection, then
plaintiff must present evidence that either
1. casts sufficient doubt on defendant’s
proffered reason(s) so that a fact finder could reasonably
conclude that each reason was a fabrication (i.e., plaintiff
must produce evidence from which the fact finder could
reasonably disbelieve the employer’s articulated reason
for rejection. It is not enough for plaintiff merely to show
that an employer’s reason was wrong, unwise or mistaken)
[Pretext Prong One] or
2. allows the fact finder to infer that
discrimination was more likely than not a motivating or
determining reason for the rejection [Pretext Prong Two].
In Bray, plaintiff, a black female
employee, brought a complaint against Marriott alleging Marriott
discriminated against her in favor of a white female employee
when it failed to promote Bray to the position of Director of
Services.
Marriott’s proffered nondiscriminatory reason for
selecting the white female over Bray was that the former was
better qualified: The white applicant had (1) a higher
three-year performance rating (1, 2, and 1 versus 2, 2, and 2);
(2) a higher job-grade level (45 versus 43); (3) a degree in
restaurant and hotel management versus English and history; and
(4) was twice named Manager of the Year, which Bray never was.
Bray attempted to cast doubt on Marriott’s
proffered reason by introducing evidence that (1) the white
applicant’s most recent performance rating was based on a
semi-annual review rather than an annual one, (2) Marriott never
told Bray that she was rejected before interviewing the white
applicant, contrary to Marriott’s internal guidelines, and
(3) there were inaccuracies in a Marriott general manager’s
deposition testimony regarding the evaluation and selection
process.
The district court was unpersuaded that Bray’s
evidence created a genuine issue of material fact and granted
Marriott’s motion for summary judgment. At the district-court
level, Bray had maintained that she had satisfied both pretext
prongs, but on appeal she only challenged the district court’s
Prong One determination. Bray contended that she had shown that
she exceeded the white employee in every objective measure and
that there was no reasonable explanation for her not getting the
position other than race discrimination.
A majority of the Third Circuit three-judge panel
agreed that Bray had presented enough evidence of inaccuracies
and discrepancies in Marriott’s proffered nondiscriminatory
reason to allow a reasonable fact finder to infer that such
reason was a pretext for discrimination. Specifically, the
majority cited Marriott’s failure to comply with its internal
guidelines by failing to notify plaintiff of her rejection
before interviewing the white applicant; the general manager’s
inaccurate deposition testimony that he thought Bray was not
capable of doing the job; the general manager’s inaccurate
deposition testimony that the white applicant was unanimously
chosen by the three-member selection committee; and the fact
that the white applicant’s last evaluation was a semi-annual one
as opposed to an annual one. The Third Circuit reversed.
Judge Alito dissented, noting that the Prong One
standard requiring plaintiff to provide evidence that may cause
a reasonable fact finder to disbelieve defendant’s
proffered reason is a higher standard than one that requires
only that the fact finder disagree with the reason.
Judge Alito noted that the purported inconsistencies and
discrepancies in Marriott’s proffered reason did not rise to the
Prong One standard and, moreover, were qualified by other
evidence: viz (1) Marriott’s failure to comply with its
internal guidelines regarding notifying plaintiff of her
rejection before interviewing the white applicant was a
de‑minimus administrative error; (2) the general manager’s
inaccurate statement that Bray was not capable of doing the job
was clarified by his very next deposition statement wherein he
stated that he was looking for the “best qualified” candidate;
(3) the general manager’s inaccurate testimony that the white
applicant was selected unanimously was, again, de‑minimus (two
members agreed with the selection, one abstained); and (4) the
issue of the semi-annual review, even if somehow probative of
discriminatory animus (presumably by suggesting that it was an
effort to inflate the white applicant’s record), was not raised
by Bray on appeal and, accordingly, was waived.
While the majority’s burden of proof analysis was
not necessarily a radical departure from the standard in a
pretext case, Judge Alito “respectfully suggest(ed) that what
the majority here has done is to weaken the burden on plaintiff
at the pretext stage of the McDonnell Douglas framework
to one where all the plaintiff needs to do is point to minor
inconsistencies or discrepancies in terms of the employer’s
failure to follow its own internal procedures in order to get to
trial.”
Judge Alito’s suggestion is a bit modest. In
truth, the majority’s approach effectively transforms
defendant’s burden of production into a burden of proof,
thereby derogating plaintiff’s burden of proof and
incorporating, however subtlely, a presumption of discrimination
into the McDonnell Douglas framework.
It is submitted that this is a prime example of
Judge Alito’s judicial approach and temperament that are the
best protection against erosions to civil rights liberties: a
precise, faithful and disciplined interpretation of the law.
A third contention unsupported by our examination
of Judge Alito is that the civil rights votes and opinions are
regressive or out of the mainstream. A review of the hundreds
of cases upon which Judge Alito has sat in his 15 years on the
Third Circuit produces 121 panels that decided cases that may be
termed, in the traditional sense, “civil rights cases.” That
is, the issues in the cases involved matters pertaining to
constitutional provisions such as the Fifth or Fourteenth
Amendments or statutes such as the 1964 Civil Rights Act, the
1965 Voting Rights Act, or the Americans with Disabilities Act,
etc.
If Judge Alito is a hard-right extremist and
outside the judicial mainstream, then by definition one would
expect that he would rarely side with his fellow judges on the
Third Circuit Court of Appeals. In fact, one would expect that
he would almost never agree with those judges appointed by
Democrat presidents. Further, one would expect that Judge Alito
would vote with his Republican colleagues against his Democrat
ones by overwhelming margins.
But a review of Judge Alito’s extensive civil
rights record on the Third Circuit shows that if he is a far
right, closed-minded ideologue, then so are all the other judges
on the court, whether appointed by Democrats or Republicans.
Obviously that is not the case.
Judge Alito’s co‑panelists on civil rights cases
agreed with his votes and written opinions 94% of the time,
producing unanimous results 90% of the time. Moreover,
Democrat-appointed judges actually agreed with Judge Alito’s
position at a slightly higher rates (96%) than
Republican-appointed judges (92%).
Consider Judge Alito’s record when sitting on
panels with two Democrat-appointed judges (RDD Panels); then
compare such record to the panels where Judge Alito sat with one
Republican-appointed judge and one Democrat-appointed judge (RRD
Panels); and finally compare such record to panels with two
other Republican-appointed judges (RRR Panels):
RDD Panels.
Judge Alito sat with two Democrat-appointed judges in 20 cases,
and all 20 were unanimous. The results favored the civil rights
plaintiff six times (30%) and were adverse 14 times (70%).
Judge Alito wrote the majority opinion in five of the cases.
Where Judge Alito wrote the opinion, the results favored the
civil rights plaintiff 40% of the time and were adverse 60% of
the time.
RRD Panels.
Judge Alito sat with one Republican and one Democrat-appointed
judge in 60 cases, where his Democrat-appointed colleague agreed
with him 56 times (93%) and disagreed only four times (7%) – the
same rate as his Republican-appointed colleagues. 54 of the 60
cases were unanimous (90%). The results in slightly over half
of the cases were adverse to the interests of the civil rights
claimant. Judge Alito wrote the opinion for a unanimous court
in 14 cases, for a split court in three, concurred in two and
dissented in two.
RRR Panels.
Judge Alito sat with two other Republican-appointed colleagues
in 41 cases with a 90% agreement rate. All but six were
unanimous (85%). Judge Alito wrote 11 unanimous opinions, one
for a split court, one concurrence and one dissent.
Interestingly, panels in which Alito participated
with two other Democrat-appointed judges were more likely to
render decisions adverse to civil rights plaintiffs than panels
in which Judge Alito was joined by two other Republicans.
Moreover, the RDD Panels were more likely to be unanimous (100%)
than the RRR Panels (85%) – hardly evidence of a partisan
ideologue.
Obviously, a thorough assessment of Judge Alito’s
judicial approach requires an analysis of the actual facts and
applicable law of each case. Some disagreements may occur in
cutting-edge cases. Nonetheless, it cannot be credibly claimed
that Judge Alito is a judicial extremist or hostile to civil
rights without leveling the same charges against every other
judge on the court.
Judge Alito has issued at least forty-seven
written civil rights opinions: thirty-five majority opinions,
five concurring opinions, and seven dissenting opinions. Of
Judge Alito’s decisions on 3‑Judge panels, he sat with forty-six
federal judges from the Third Circuit, five other Circuit Courts
of Appeals (5th, 8th, 9th, 11th
& Fed. Cir) and nine lower federal courts. Judge Alito’s
co‑panelists represent the appointments of 5 Republican and
3 Democratic Presidents. In the identified civil rights cases,
they agreed with his votes and written opinions 94% of the time,
producing a unanimous result 90% of the time.
Again, these statistics are merely descriptive
and do not purport to be predictive of whether
Democratic-appointed judges share Judge Alito’s jurisprudence or
approach in civil rights cases. However, the high agreement
rate suggests that Judge Alito’s judicial approach is not out of
the mainstream of contemporary legal thought.
Judge Alito’s 25-year record on matters
pertaining to civil rights demonstrates an unwavering commitment
to equal protection under the law and a precise and
comprehensive understanding of our civil rights laws that would
make him an outstanding addition to the Supreme Court.
