Spring 2006

Ideologue or mainstream?
Alito is now a member of the
Supreme Court.

Samuel A. Alito, Jr., President Bush’s second nominee to replace Justice Sandra Day O’Connor, was confirmed by a large margin by the U.S. Senate and is now Justice Alito of the U.S. Supreme Court.

court Although he may be a staunch conservative on many issues, Justice Alito’s rulings regarding the Americans with Disabilities Act when he was on the 3rd U.S. Circuit Court of Appeals appear to be close to the mainstream. The National Disability Law Reporter of Nov. 24, 2005, reviewed his 3rd Circuit cases and attorneys interviewed for the article believe he evaluates cases on their merits. While he was on the 3rd Circuit, Judge Alito authored nine ADA decisions, approximately 20 percent of that court’s published ADA cases.

But Alito’s record is a very mixed bag and it has provoked strong feelings both pro and con. One lawyer interviewed in the article, for example, Jonathan R. Mook of Alexandria, Va., said, “Certainly I have come across many examples of his castigating plaintiffs in employment cases, or bemoaning the vagueness of the ADA in his decisions.”

By contrast, another, Robert B. Fitzpatrick, of Washington, D.C., said: “Given the reputation of the 3rd Circuit as, relatively speaking, a liberal circuit, this would suggest to me that Justice Alito is not the ‘off the deep end’ jurist the Democratic Party leadership attempts to portray.”

Many attorneys quoted in the article said they do not expect that Alito’s participation will change the Supreme Court’s recent views on disability issues, which continue to narrow the scope of the ADA in employment decisions.

His mixed record on the 3rd Circuit includes the case of Nathanson v. Medical College of Pennsylvania (1994), a case involving disability-based discrimination. Judge Alito’s dissent resulted in the court’s majority saying that his dissent was so restrictive that “few if any … cases would survive summary judgment.” Many legal scholars believe that this case has many side issues that do not allow for a clear understanding of his reasoning.

But in cases involving employment law, Alito has voted both to uphold summary judgment, as in Donahue v. Consolidated Rail Corp. (2000) in favor of the employer, and to reverse a grant of summary judgment to an employer. The case was Fiscus v. Wal-Mart Stores, Inc. (2004). Wal-Mart refused to accommodate an employee who needed dialysis following kidney surgery. Instead the company placed her on a leave that expired before her recovery was completed. Wal-Mart claimed that she did not have a covered disability. The 3rd Circuit disagreed, and Alito concurred in this decision, which held that the ability to cleanse one’s blood and eliminate waste is a major life activity. Interestingly, Alito supported the 3rd Circuit’s reversal of the District Court decision written by Michael Chertoff, who is now director of the Department of Homeland Security.

Justice Alito may make a definitive difference in how Title II of the ADA is applied to state governments, according to Jonathan Mook. As in the case of Tennessee v. Lane, the Supreme Court case of 2004 involving the right of people with disabilities to have access to the courts under the 14th Amendment, Justice Alito “will take a narrower view of what types of access to state services might be constitutionally mandated,” Mook said, adding, “I think his influence may come to bear in his being more protective of states’ rights than the court may have seemed with Lane.” (National Disability Law Reporter, Nov. 24, 2005

Ideologue or mainstream? Alito is now a member of the Supreme Court.

Ideologue or mainstream?
Alito is now a member of the
Supreme Court.