Contents    Prev    Next    Last

Date: January 11, 2006

Senator: DeWine

Topic:

 Contents

 SPECTER: Senator DeWine, 20 minutes?

DEWINE: Thank you, Mr. Chairman.

Judge, yesterday you and I discussed the concerns that I have about the Supreme Court's willingness to strike down laws passed by this Congress and by state legislators. This lack of what I consider to be appropriate deference by the court endangers our ability to protect the rights of our citizens.

One of the groups that I'm most concerned about in that context is people with disabilities.

Congress has passed a number of laws to assure that people with disabilities have equal access and equal opportunities. I think it's critically important that we make sure that those with disabilities have these opportunities to participate fully in our society in every way possible.

As you know, Judge, the Americans With Disabilities Act was a landmark piece of legislation passed by this Congress in our ongoing efforts to assure that people with disabilities are treated fairly.

The 1999 case of Olmstead v. L.C. was an important Supreme Court case interpreting this law. As you know, Olmstead held that Title II of the ADA required states to serve individuals with disabilities in community settings whenever possible instead of segregating them while providing them with care.

DEWINE: Olmstead was decided after the case of Helen L. v. DiDario, a case which, of course, you're familiar with, a 3rd Circuit case that reached essentially the same conclusion.

Although you were not on the Helen L. panel, you, along with four other judges, voted to rehear the case en banc.

So let me ask you, Judge, if you could, to discuss with us your reasoning behind voting to rehear the Helen L. case. And I'd like to ask you, did that vote to rehear the case mean that you thought that Helen L. case was decided incorrectly, or that you opposed the later holding in Olmstead.

Let me also ask you, now that Olmstead has been decided, do your reasons for voting to rehear the Helen L. case still apply? And do you have any concerns with the Supreme Court's holding in Olmstead that would cause you to question the validity of that particular decision?

ALITO: I certainly don't have any concerns about the decision in Olmstead.

I would have to look at my own file in the Helen L. case -- and I doubt that there is any file in the case at this point -- and see if there's anything in there to indicate specifically why I voted for rehearing in the case.

But I can say this: that I read the decision again and one important part of the opinion in the case attempts to distinguish an earlier 3rd Circuit case that seemed to be somewhat closely related, closely related to the issue that was at hand. And I noted there were five votes for rehearing in the case, and that's quite unusual. It's unusual for there to be that many votes for rehearing.

I would say most of the time when we vote for rehearing, the reason is because we think that there may be an inconsistency in our court case law.

And that doesn't necessarily mean that we think that the decision we're voting to rehear was incorrect.

ALITO: Quite often, we think the decision that we are voting to reconsider is correct but that it is inconsistent with a prior case that needs to be overruled.

And we're very scrupulous about following our own precedents, not ignoring them. So if we have a precedent out there and it seems to us to be wrong and the issue comes up in a later case, then our mechanism is to vote to rehear.

And that happens very often. And my guess, based on what I can tell just from reading the opinion and looking at the votes for rehearing and the judges who voted for rehearing, that that could have been what was going on.

DEWINE: I appreciate your answer, Judge.

As the chair of this committee's, Subcommittee on Antitrust, I have seen that it is very often very hard to draw the line between anti-competitive conduct and, frankly, just good old-fashioned competition.

Let me give you an example that Senator Kohl and I have done a great deal of work on, and, frankly, Senator Kohl has really taken a lead on.

Many hospitals buy their supplies through group purchasing organizations known as GPOs. These organizations purchase products for large number of hospitals at one time, which decreases prices but also gives them extraordinary power over which products get used and which ones don't get used.

Often GPOs reach deals with major suppliers to buy items in bundles; in other words buy a number of different products and those suppliers in order to get discounts on all of the products. Saves money but it also means that smaller companies, which may only offer one of these products, have really a hard time competing with the large discounts being offered. The result is that smaller companies have difficulty getting into the market even if their one specific product may be better or may even be cheaper.

Judge, you had a case that dealt with bundling like this. It was, of course, the 3M v. LePage's case. In that case, 3M, which sells Scotch tape, was selling it as part of a bundle with other products. The result was that LePage's, which was offering a cheaper, competing tape, was having a hard time getting stores to sell its tape because if the stores did, they would have to give up the chance to save money on all the other 3M products that they carry.

The majority ruled against 3M, but you dissented. I wonder if you could please explain your reasoning behind that dissent, and explain what type of bundle discounts you think would violate the antitrust laws.

ALITO: Well, let me preface what I'm going to say by saying that I'm not an antitrust expert, and so I plod my way through these antitrust issues when they come up.

But this was a tough one, and it was a monopolization case. And it required an examination of all the factors that were relevant to the determination of whether 3M was engaging in monopolization.

3M was selling the product, as I recall -- it was selling these products -- it was not selling them below its cost. It was selling them above its cost. But 3M, because of its scale or because it was more efficient and was able to produce its product more cheaply.

And I remember looking at the authorities that had discussed this and the writing of leading antitrust experts on bundling issues.

ALITO: And that factor, taken together with the other factors in the case, persuaded Judge Greenberg and I -- and we were the majority on the case at the panel level -- that there wasn't sufficient evidence of monopolization here.

And then when the case went en banc, the court as a whole came out the other way.

But my understanding of the state of the scholarship on this issue right now and on the way economists view the issue is that I believe that there are many of them who believe that a situation like this does not involve monopolization, that this is not a way in which a company like that can engage in a predatory practice over a period of time.

But there's uncertainty, really, about how the monopolization standard applies to issues of bundling. So I think it's quite up in the air and should it come up again, I think it merits reexamination.

DEWINE: Thank you, Judge.

Judge, you've heard a lot of discussion, and many of us have said that we don't like it when judges legislate from the bench.

For judges to properly perform their function, obviously, it's crucial that they attempt to put their own policy preferences aside in the cases before them. But it seems to me that this is a lot easier said than done.

Our Constitution is not a dictionary. It contains a number of very broad, undefined phrases.

Let me give you some examples. The Fourth Amendment prohibits unreasonable searches and seizures. The 14th Amendment says that the states shall not deprive any person of liberty without due process of law. The Eighth Amendment prohibits cruel and unusual punishments.

And I'm sure you can supply a lot more examples than I am.

When confronted with such broad phrases, like "unreasonable, liberty, cruel, unusual," how do you know whether you are making policy or merely interpreting the Constitution itself?

And what tools will you use as a Supreme Court justice to ensure that your personal views do not play a role in your decision-making?

ALITO: In all the areas that you mentioned, there is now a considerable body of case law. And that is a real limitation on the exercise of judicial power. And that is one of the important reasons for the doctrine of stare decisis.

In the 78th Federalist Paper, when Alexander Hamilton was responding to the people who were worried about this power of judicial review, who thought that it would give the judiciary too much power, he specifically cited the fact that members of the judiciary would be bound up by precedent and this would restrain them; this would keep them from injecting their own views into the decision-making process.

Under the Fourth Amendment, there's an enormous body of case law now, and there are many types of searches that it's established in case law that a warrant is required. There are types of searches where it's established now that the activity can be conducted with reasonable suspicion, a Terry stop, for example. Other types of searches require probable cause. And there are many specialized types of searches, administrative searches, road blocks constructed for certain purposes, border searches and so forth.

Under the due process clause of the Fifth Amendment and the 14th Amendment, there's a great body of case law on procedural due process. And most of the due process issues involve procedural due process, what sort of process is required.

There is a standard for cases involving the substantive component of that.

Under the Eighth Amendment, since the Supreme Court in Gregg v. Georgia ruled that the death penalty is permissible under certain circumstance. There's a very -- a large body and a complex body of case law within which a judge would work in deciding cases in that field.

DEWINE: Judge, let me turn to an area that I talked with Judge Roberts about, and that is free speech in the public square.

DEWINE: To me, there's perhaps no right in our Constitution that is really as important as the freedom of speech.

The heart of the First Amendment is the idea that people have a right to speak their mind but also be heard on matters of public concern.

Traditionally, our citizens have expressed their opinion on public issues by turning to the public square. They do it in parks, in streets, in sidewalks, anywhere that people gather. It's as old as the country and older than our country.

Lately, however, I believe that we're seeing a disturbing trend.

Many cases governments have sought to restrict speech in the public arena; sometimes with success, sometimes without.

Let me give you some examples. One recent case, a Wisconsin woman was kicked off a city bus when she tried to distribute a book containing Bible stories to individuals sitting next to her.

In many towns and cities across the country, individuals are prohibited from placing political signs on their own property. They're told what size they can put out. They're told the times they can put it out, the dates they can put it out, et cetera.

In many public places, individuals have been forced to hold up signs or protest and been confined to free speech zones, far away from the event that they wish to protest. These individuals doing nothing more many times than just standing there with a sign.

These sorts of restrictions concern me because they limit the ability of individuals not only to speak but also to be heard in public places, people who want to talk about politics, religion or any other matter of public concern.

I think we need to be careful as a society before we limit what people can say and where they can say it.

Let me ask you: How do you approach challenges to government restrictions on the ability of individuals to speak and be heard in public places?

And what, Judge, factors do you consider when deciding which restrictions on speech in the public square are proper under the First Amendment and which ones are not?

ALITO: I think that freedom of speech and freedom of the press and all the freedoms set out in the First Amendment are matters of the utmost importance.

ALITO: Freedom of speech is not only important for it's own sake, but it is vital to the preservation of our form of government. And I think that if anybody reviews the opinions that I've written in the area of freedom of expression and other First Amendment...

DEWINE: I've looked at some of them, at least.

ALITO: ... they will see that I strongly support those rights.

The issue of speech in particular places is a daunting issue, where the Supreme Court has addressed it by developing the forum doctrine and they have identified what they call public forum, which would be something like a public street, where people's ability to speak is at the maximum.

At the other extreme, there's a private forum. My chambers would be a private forum; a senator's office would be a private forum. Someone would not have a right to come in from the street and speak in a place like that.

And then there are what they call limits of public forums, or dedicated public forums or fora, places where people can speak freely, but only at particular times on particular subjects, a place that's decided to free speech, but only on a particular subject, for example.

That's the way they analyze it.

Now, some people would say that there are developments in society that have resulted in the shrinking of public fora that make it more difficult for people to express themselves. I know that I'm not up to date on New Jersey case law under the New Jersey constitution, but it's my belief that our state has read this -- has a different forum doctrine in things like shopping centers -- malls that are privately owned are considered to be public fora under a New Jersey state law. I think some other states view it that way and that's a competing way of looking at this problem.

An important principle -- where I have dealt with this in my cases, as I can recall, is the issue of freedom of speech in a limited public forum. And even in a limited public forum, what government cannot do is engage in viewpoint discrimination.

ALITO: If the government opens up a particular forum for discussion of a particular subject, you can't say, "But we're only going to allow people who express this viewpoint and not another viewpoint."

Viewpoint discrimination really goes to the heart of what the First Amendment is intended to prohibit, so that even in a limited public forum, where people are restricted with respect to what subject that they can talk about, government can't impose a viewpoint discrimination.

DEWINE: Well, it just seems to me, Judge, that we could talk about this issue all day, and we're not going to, obviously, but that there is a shrinking public forum, and the opportunities many times are going away.

I guess you could make the other argument that because of modern technology, there are other opportunities, with the Internet, et cetera, that they are opening up for people to communicate and to make their point well known.

But a lot of the places that people historically have talked and made their point well known are shrinking. You talked about the malls, which certainly in most states are totally off limits to any kind of display of that kind of debate.

Let me turn to commercial speech, if I could. Under current law, commercial speech is protected by the First Amendment, but it has never had the same level of protection as other forms of speech, such as political speech. The difference in treatment has puzzled a number of commentators and judges.

In reviewing your cases, I noticed that you are certainly familiar with the issue of commercial speech. In Pitt News case, for instance, you struck down a Pennsylvania statute that barred paid alcohol advertisements in newspapers affiliated with colleges and universities.

Let me ask you, Judge, based on your experience with this and other cases, what is your view about the distinction between commercial speech and noncommercial speech, and is there a common- sense difference between these two types of speeches? And have you found that case law supports any distinction? And how, if confirmed, will you approach the so-called commercial speech claims under the First Amendment?

ALITO: Well, there's a debate about how much protection commercial speech should have.

There are those who argue that the distinction between commercial speech and noncommercial speech should be eliminated. The Supreme Court views commercial speech differently. And while it is strict about any limitation regarding accurate information about prices it limits, it permits greater restriction of commercial speech under current case law than it does with respect to other types of speech.

And the theory, as I understand it, is that commercial speech is more durable. At least that's part of the theory. In other words, there's such a great incentive for people who are selling things to engage in advertising and other forms of commercial speech that it's less likely to be driven out than speech on other issues where the financing may not be as extensive.

In the Pitt News case, what I had to apply was the question of whether there was sufficient tailoring.

There was a compelling interest for what was done there, which was to restrict advertising about alcohol in a publication that was affiliated with an educational institution. But based on the facts there, it just did not seem to be tailored at all.

This was a newspaper that, I think, 75 percent of the people who received it in its connection with the University of Pittsburgh, were people over the drinking age.

And maybe even more to the point, this publication was distributed free on campus and in newspaper boxes next to a number of others that contained commercial publications.

And they both advertised establishments and events in the area of the university. And the others were full of information about alcoholic beverages and those were free too.

So while the problem of underage drinking and abusive drinking on college campuses is a very serious issue, and the Pennsylvania legislature recognized that and we certainly didn't question that -- it is an issue of critical importance -- it seemed quite unrealistic to think that this regulation, which only applied to the Pitt News and not to these other publications, was tailored sufficiently.

DEWINE: I thank you, Judge.

Interesting set of facts. I thank you, sir.

SPECTER: Thank you, Senator DeWine.

	Contents    Prev    Next    Last