Alito Seen as Carrying the Torch of Reagan

By David G. Savage
Times Staff Writer

January 31, 2006

WASHINGTON — Twenty-five years ago, President Reagan came to Washington with bold plans to move the Supreme Court to the right.

He and his lawyers wanted a high court that would uphold state laws that impose the death penalty, restrict abortion and allow a greater role for religion in public life. They favored property rights over environmental regulation, states' rights over broad federal authority and executive power over Congress and the federal courts.

Now, with the Senate about to confirm Judge Samuel A. Alito Jr., a second generation of Reagan disciples stands ready to fulfill the former president's vision for the court.

Senators voted 72 to 25 Monday to cut off debate and end a filibuster against Alito's confirmation, and are expected to approve him today as President Bush's second Supreme Court appointee.

Alito, like Chief Justice John G. Roberts Jr., was drawn to the conservative ethos of the Reagan administration in the 1980s. Both men worked in Reagan's Justice Department and as advocates for the administration before the Supreme Court.

This year, both were promoted for the high court by a network of former Reagan lawyers, including his onetime attorney general, Edwin M. Meese III, who hold influence with the Bush White House. And some of Reagan's former advisors see the elevation of Roberts and Alito as the culmination of a long drive to put Reagan's conservative stamp on the high court.

"It is a matter of enormous pride to see two of our colleagues become Supreme Court justices," said Charles J. Cooper, a Washington lawyer who hired Alito for a key Justice Department post in 1986. "The Reagan administration was very deliberate in trying to promote bright, ambitious young conservatives. And this is in many respects the fulfillment of that effort."

Despite the passage of time, the conservatives' agenda for the high court remains remarkably the same. They want a court that will uphold restrictions on abortion, permit religious displays such as the Ten Commandments on public property and give police and prosecutors a freer hand to enforce criminal laws.

Equally important is what the court does not do. Social conservatives are hopeful that the Roberts court will not interpret the Constitution in a way that would create a right to same-sex marriage or forbid the use of the words "under God" in the Pledge of Allegiance.

"We should look for a court with a lowered profile, a court that tries to resolve cases but one that does not discover new constitutional rights," said Pepperdine law professor Douglas W. Kmiec, another Reagan administration veteran who worked with Alito and Roberts.

If the Bush appointees plan to lead a sharp move to the right, it should be evident soon. This year, the court is facing cases that could result in cutbacks in federal environmental regulation, more restrictions on abortion and greater presidential control over "enemy combatants" without interference by the courts. One pending case tests whether the court will make it easier for state death row inmates to win new trials if DNA evidence casts doubt on their convictions.

But it is not clear that Roberts, 51, and Alito, 55, can form a solid conservative majority to make major changes in the law, even if they wish to do so.

They join a court with two Reagan-era conservatives, Justices Antonin Scalia, 69, and Clarence Thomas, 57. Scalia was appointed by Reagan in 1986. Although Thomas was appointed to the high court in 1991 by President George H.W. Bush, he first came into government during the Reagan administration.

Much depends on Justice Anthony M. Kennedy, 69. Reagan's final appointee, Kennedy has proven to be more of centrist than a reliable conservative.

Four justices — John Paul Stevens, 85, David H. Souter, 66, Ruth Bader Ginsburg, 72, and Stephen G. Breyer, 67 — form the court's liberal bloc. They vote regularly for the separation of church and state, against the regulation of abortion, in favor of affirmative action and usually for federal power over states' rights. They also have voted to limit the use of the death penalty. If Alito or Roberts finds common cause with them, it would be a major surprise.

The areas of law to watch are those where Kennedy shares the views of Scalia and Thomas. For example, all three say states have a "sovereign" status that shields them from being sued for violating some federal laws.

The court has said state employees who suffer discrimination because of age or disability cannot sue their employers, unlike other workers. This doctrine, if extended by future rulings, could sharply limit the rights of the more than 5 million employees of state agencies, state-run hospitals and state colleges and universities.

Roberts already has signaled that he too believes in the notion of state's "sovereign immunity." Alito could form a five-member majority to extend states' rights.

On another issue, Kennedy, like Scalia and Thomas, believes the free-speech guarantee in the 1st Amendment makes most campaign finance laws unconstitutional. All three dissented two years ago when the high court narrowly upheld the McCain-Feingold Act, the measure that put limits on how much corporations, unions and individuals could give to political parties.

In late February, the court will take a Vermont case that tests whether states can set legal limits on spending as well as contributions in state and local races. If Roberts and Alito join with Scalia, Thomas and Kennedy, the new majority could make clear that states and localities — as well as Congress — have no real power to restrict the influence of money in elections.

Such a ruling could highlight a possible contradiction in the conservative philosophy. President Bush, like Reagan, has insisted that judges should not "make law" or "legislate from the bench." Roberts, during his Senate confirmation hearings, said he favored a modest role for the high court, an approach that would uphold popular laws.

But the conservative justices do not always espouse judicial restraint and states' rights. Last year, Scalia and Kennedy — but not Thomas — voted to give federal agents the power to arrest and prosecute seriously ill patients in California who grew and used marijuana to relieve their pain, despite a state law that permitted the medical use of marijuana.

In the past, Scalia had been a leading voice in saying states and their voters, not the federal courts, should decide controversies such as abortion and doctor-assisted suicide. But this year, in the first major ruling of the term, Scalia, Thomas and Roberts would have given the Bush administration's attorney general the power to void the nation's only right-to-die law, in Oregon.

The conservatives' position lost in the California and Oregon cases.

Reagan's lawyers had hoped the Supreme Court would overturn Roe vs. Wade entirely and let states set the law on abortion. But Kennedy joined a 5-4 majority in 1992 that upheld the right of pregnant women to choose abortion before the time a fetus can live on its own.

But Kennedy has also said abortion can be regulated and restricted. He dissented along with Scalia and Thomas when the court struck down a state law banning a procedure that critics call "partial-birth abortion." Since then, however, the Republican-controlled Congress chose to confront the high court on the issue by passing a federal ban on the procedure.

The Bush administration has urged the justices to uphold the law, and its appeal is pending — awaiting the arrival of Alito.

The reach of presidential power is also on the docket. A case to be heard in late March will test whether Bush has the power to imprison "enemy combatants" without oversight by the courts, as he contends.

And Alito's conservative instincts will get an early test in the area of environmental law. In three weeks, when the court next hears arguments, the justices will take a property rights case that could sharply restrict the reach of a key antipollution statute, the Clean Water Act of 1972.

The case is set to be heard Feb. 21, the first day that Alito would take a seat as a member of the Supreme Court.

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