Foes cite Alito's stance on liberty

WASHINGTON -- During his years on the US Court of Appeals for the Third Circuit, Judge Samuel A. Alito Jr. repeatedly tried to limit the court's interpretation of the 14th Amendment's protection of ''life, liberty, and property" -- one of the key legal underpinnings of the Roe v. Wade abortion case.

The appeals court had ruled in a series of cases that the 14th Amendment protects people against arbitrary decisions by their local government, such as zoning board officials who deny permits for no good reason.

Alito, now a nominee to the Supreme Court, rejected such rights, writing that ''only in extreme circumstances is it proper to invoke" 14th Amendment protections.

Although the zoning board cases involved a subject quite different from abortion, Alito's critics note that the Supreme Court cited the same interpretation of the 14th Amendment in Roe v. Wade as a justification for the right to an abortion -- that denying a woman access to an abortion unfairly deprives her of her liberty.

Moreover, the zoning cases present a series of examples of Alito declaring that past cases were wrongly decided and should be overruled -- just what liberal activists fear he would do with abortion rights.

Elliott Mincberg, general counsel of the liberal group People for the American Way, said Alito's repeated efforts to overrule the zoning precedent should send a warning to senators.

''When there's a precedent that he disagrees with and that he has the power to do something about, this shows that he's quite aggressive in trying to overturn it," Mincberg said.

But conservative defenders of Alito argue that his skeptical views on liberty rights are a good thing, though they don't necessarily mean he'll overrule Roe v. Wade.

The abortion case, they said, is a much-affirmed precedent involving a nationally important issue, and thus will be given more deference than most other court precedents.

Still, they say, Alito is right to take a cautious view of liberty rights in an era when courts are being pressured to discover new rights for gays to get married or the terminally ill to die.

''There are many very important and serious legal scholars who take issue with [liberty rights] because it very quickly becomes what the judge thinks the law should cover," said Sean Rushton, of the conservative Committee for Justice.

In recent decades, the Supreme Court has invoked liberty rights to strike down laws forbidding contraception, abortion, interracial marriage, and gay sex between consenting adults; a zoning law that prevented extended families from living together; and a law that forced parents to let grandparents visit their children.

But because the Constitution does not explicitly list the rights protected by those decisions, some legal conservatives reject the rulings as mistakes.

Alito has long expressed skepticism about such decisions. In a 1985 job application, he said he believed that ''the Constitution does not protect a right to an abortion."

The 1985 job application and other conservative writings have prompted some senators to declare they will question Alito closely at next month's confirmation hearing about his views on overturning precedent.

For example, the Senate Judiciary Committee chairman, Arlen Specter, Republican of Pennsylvania, sent Alito a letter this month asking when the judge would consider overturning rulings ''that have become part of our national culture."

Specter, an abortion-rights supporter, also said Alito had told him during a private meeting that he would respect the court's precedents and not overturn them lightly.

But in the zoning cases, Alito tried on at least three occasions to overturn an established liberty-rights precedent he disagreed with.

In 1995 and 1997, Alito brought the issue up, even when his colleagues said it was not relevant to the cases before them.

''I see nothing in [the precedent] or the cases that have followed it that convinces me that every ill-motivated governmental action that restricts the use of real estate constitutes a violation" of the 14th Amendment, Alito wrote in one lone dissent, rejected by 12 of his fellow judges. ''I would . . . overrule [the precedent] and the cases that followed it."

Finally, in 2003, Alito succeeded. A movie theater company had sued a town for allegedly abusing its zoning power to help a rival company build a multiplex.

Alito, assigned to the three-judge panel reviewing the case, persuaded one of his colleagues to join him in dismissing the lawsuit on grounds that the liberty rights precedent ''and its progeny are no longer good law."

The third judge on the panel, an appointee of President Ronald Reagan, expressed dismay, saying Alito had ignored two other cases in which their court had rejected the reasoning Alito used to justify his ruling.

''I would hold fast to the scheme that is already firmly entrenched in this circuit," Judge Robert E. Cowen wrote. ''The evisceration of this standard by the majority today is a most unfortunate step backwards in the evolution of . . . bedrock constitutional rights. I am deeply concerned that there will be consequences."

Liberty rights used to be a bane of liberals.

The Supreme Court invoked liberty rights to strike down many of President Franklin Roosevelt's New Deal economic orders, stating that government regulations of work hours and wages violated an individual's ''right to contract" for his labor.

The Supreme Court eventually overruled the cases citing a ''right to contract."

But in the 1960s, the court began invoking liberty rights to protect people's personal lives from government intrusion -- in the cases involving contraception, abortion, and gay sex -- and many conservatives were outraged.

Liberty rights ''is a two-edged sword," said Richard Fallon of Harvard Law School. ''When it's cutting one way, liberals hate it. When it's cutting the other way, conservatives hate it."

Several legal scholars, asked to examine the zoning cases, said they were further evidence that Alito probably will take a particularly conservative approach when confronting cases invoking liberty rights.

''I don't see him legalizing gay marriage," said Richard Epstein of the University of Chicago Law School.

Still, liberal activists said they fear Alito may be more than just skeptical of new liberty rights -- he may try to overturn old ones.

In another 1997 decision, for example, Alito declared that the 14th Amendment must be read in the context of history -- that rights not recognized when it was ratified in 1868 are suspicious.

''I think that our [liberty rights] inquiry must be informed by history," Alito wrote.

He argued, ''It is therefore significant that at the time of the adoption of the Fourteenth Amendment and for many years thereafter," the claimed liberty right in the case before him ''was not recognized." He voted against it.