How Alito Looks Under the Lens

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While Scalia has a libertarian streak that occasionally leads him to restrict the power of institutions--most notably the Bush Administration's ability to detain suspected terrorists--Alito tends to defer to established institutions in their legal battles with individuals. That tendency, as noted by University of Chicago law professor Cass Sunstein, is most evident in Alito's dissents and extends to police departments, prison authorities, zoning boards and especially corporations. In deciding whether a plaintiff had sufficient evidence that she had been sexually harassed, whether police had the right to strip-search a mother and child at a meth house during a raid or whether a death-row inmate's lawyer provided adequate counsel despite failing to obtain potentially mitigating evidence, Alito has usually given the benefit of the doubt to the powers that be.

When he opined that a black housekeeping manager at a Marriott hotel had not shown enough evidence of discrimination to merit a jury trial and argued that unhappy workers can't subject their employers to the costs of litigation every time they are treated unfairly, other judges on the panel said his reasoning would virtually "eviscerate" all employment-discrimination law. It is a concern that some liberal legal scholars share. "He has been consistently hostile to victims of discrimination, in employment cases and others," says Duke law professor Erwin Chemerinsky.

THE HIGH STAKES

When confirmation hearings begin in January, Senators will do their best to divine how Alito would rule on a range of key issues. But abortion, more than any other topic, will be on everybody's mind. Alito's mother Rose, 90, a former schoolteacher and principal, may have matter-of-factly told reporters that "of course" her son is "against abortion," but, of course, nobody really knows how Alito would actually rule on a challenge to Roe v. Wade. Even if Roberts and a confirmed Justice Alito voted against Roe, it would take another replacement of a moderate to liberal justice to have the five votes needed to overturn the 1973 landmark ruling. Still, abortion-rights advocates take Alito's support of the since-overturned Pennsylvania law requiring spousal notification as a sign that he would back more and more restrictions on abortion. "What you wind up with is not an overturning but an evisceration of Roe," says Blake Cornish, legal director of NARAL Pro-Choice America.