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Conservative High Court Nominee's Philosophy Favors Government Regulation

William Fulton on
Dec 1, 2005

New Jersey is not California. New Jersey is an intense and partisan place filled with rough-and-tumble politics, gritty urban centers both decrepit and revived, political corruption, ethnic tension, and the suburban snobbery that goes with a desire to escape all of the above.

This is not the kind of crucible that you’d expect to produce thoughtfulness, extreme caution, judicial restraint and extraordinary deference to parochial governmental power, no matter how prejudiced or corrupt. Remarkably, however, New Jersey appears to have produced such a judge in Samuel A. Alito Jr., President Bush’s nominee to replace Sandra Day O’Connor on the U.S. Supreme Court. Though conservatives have hailed him, this deference to local authority has led Alito to set a very high standard for “substantive due process” – a key determination in deciding federal civil rights lawsuits. For this reason, Alito could be bad news for property rights lawyers.

Alito’s long paper trail on the Third Circuit Court of Appeals reveals a judge who is so methodical that he is almost boring – and anything but a judicial activist. Over and over in these cases, Alito narrowly circumscribes the issue at hand, creating the smallest possible envelope within which to make a decision.

Perhaps most surprising, given his background and the way politics works in New Jersey, is that Alito’s judicial philosophy requires him to turn a blind eye to the rough-and-tumble. He draws the strongest possible line between politics and law. Having grown up amid Trenton politics and served as the state’s U.S. attorney, Alito knows the score. But he seems absolutely committed to refrain from using judicial power to even the score.

In this regard, Alito could not be more different than the previous Supreme Court justice to emerge from New Jersey politics, William Brennan. Brennan was a state Supreme Court justice before he became the last great liberal on the U.S. Supreme Court. Some years ago, Governing magazine Editor Alan Ehrenhalt, a keen observer of urban ethnic politics, described the choice that a New Jersey judge must make in approaching his job on the U.S. Supreme Court.

“Cases come before you that recall all the improprieties you saw too much of in New Jersey: districts drawn to keep corrupt cliques in power, discrimination against the poor and the minorities, spoils systems that cost the citizens billions in bribery and payroll padding.” The choice, Ehrenhalt wrote, was this: “Do you strike a pose of statesmanlike restraint?” Or “do you wield your judicial power like a club?”

Brennan, of course, took the club approach. When issuing rulings that politicians must implement, Ehrenhalt wrote, “you didn’t err on the side of trusting them. You erred on the side of telling them exactly what to do – line by line, number by number, mandate by mandate.”

Alito clearly goes the other way - to the statesmanlike approach. He apparently learned this from his father, who led the New Jersey Legislature’s bipartisan research bureau for more than 30 years. Whenever the political realities of local government push through the thicket of legal argument that an appellate judge deals with, Alito ignores them in order to address the narrow issue in front of him. This leads him to defer to local governments, even those that are parochial and perhaps prejudiced or corrupt.

In the Third Circuit, many of the cases are from small towns in Pennsylvania and New Jersey, and the cases often reflect the ethnic tensions, the political corruption, and the economic hardship that these communities experience. In case after case, Alito circumscribes the matter narrowly and decides it with little acknowledgement of the roiling nature of the community that produced the case. In some cases, it’s as if Alito doesn’t want to face what’s really going on. He’s the New Jersey version of Casablanca’s Captain Renault, who can face up to corruption – and probably a substantive due process violation – only when he is shocked! Shocked! that something untoward is going on.

For example, in Desi’s Pizza v. City of Wilkes-Barre, 321 F.3d 411 (2003), a local pizzeria filed a civil rights lawsuit after being shut down as a public nuisance by the City of Wilkes-Barre, Pennsylvania. The nuisance action supposedly arose after another establishment closed and an African-American clientele shifted to Desi’s, leading to more crime. Alito’s conclusion? Even if the pizzeria owner’s civil rights had been violated, this does not necessarily mean that Desi’s had not become a public nuisance.

Occasionally, Alito will use his numbingly methodical approach to make a case for overturning precedent. His one crusade appears to be to narrow the use of substantive due process, which is used to invoke constitutional lawsuits based on the notion that the government is acting without legitimate power.

In Phillips v. Borough of Keyport, 107 F.3d 164 (1997), the majority ordered the lower court to proceed with a porn store’s civil rights action against a local government that had denied the store a permit based partly on an anti-porn ordinance passed after the permit application had been filed. In a lengthy dissent, Alito debated the merits of a previous Third Circuit ruling (Bello v. Walker, 840 F.2d 1124) that he believed had interpreted the doctrine of substantive due process too expansively.

Perhaps the most extreme example of Alito’s “blind eye” approach came in his dissent in Board of Adjustment v. BAPS Northeast Inc., 256 F.3d 107 (2001), in which a New Jersey township made life miserable for a Hindu temple seeking to take over a nightclub. The temple kept agreeing to conditions – limiting the number of worshipers, agreeing to hire off-duty cops to regulate traffic circulation – but the town kept erecting roadblocks. After the town board required the hiring of the off-duty cops, for example, the police chief said no off-duty cops were available.

Eventually the U.S. Bankruptcy Court – a bankrupt entity owned the land in question – ordered the town to let the temple use its own volunteers to police traffic. The majority affirmed the Bankruptcy Court ruling, clearly suggesting that the town was prejudiced against the Hindus. In dissent, Alito sided with the township, adding: “I would view this case quite differently if there were any suggestion that the BOA [Board of Adjustment] harbored any bias toward BAPS or any of its members, but I am aware of no such evidence.”

In other words, we presume New Jersey politicians have no ulterior motive unless evidence to the contrary whacks us in the head.

Indeed, Alito’s most daring foray into judicial activism appears to be aimed at furthering the Captain Renault school of jurisprudence and circumscribing substantive due process. In United Artists Theatre Circuit v. Township of Warrington, 316 F.3d. 392 (2002), the town asked two movie theater chains to pay a $100,000 annual impact fee. One paid and the permit sailed through; the other, United Artists, sued instead.

The threshold question before the Third Circuit was the standard of review for a substantive due process claim. Here again Alito went after the Bello ruling. Writing for the majority, he concluded that evidence of an “improper motive” was too low of a threshold for a substantive due process claim; rather, the test that should be applied is the “shocks the conscience” test laid down by the U.S. Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998), a wrongful death case.

Alito interpreted the Lewis ruling as reaffirming the “shocks the conscience” test – that substantive due process rights are violated when government officials’ actions are not merely improper but so outrageous they shock the conscience. Alito wrote that there is no reason why the shocks-the-conscience test should not apply to a land use dispute.

Clearly, Alito will take aim at substantive due process regarding land use issues before the Supreme Court. And he’ll probably take every opportunity to raise the standard of review so that substantive due process violations are harder to argue. This could make life before the Supreme Court harder for property owners.

That wouldn’t surprise William Brennan, of course. He was never shocked by anything that happened in New Jersey.