Date: January 11, 2006
Senator: Feinstein
Topic:
Contents
SPECTER: Senator Feinstein?
FEINSTEIN: Thank you very much, Mr. Chairman.
I want to try one more time.
First of all, let me just say this. Senator Durbin said that Justice Roberts retired the trophy on performance.
If that's true, you've retired it on equanimity. I really think you're to be congratulated.
This is this morning's Washington Post: "Alito says he will keep an open mind." But what concerns me -- and obviously this is on Roe -- is that despite 38 tests, despite 33 years, despite the support of a majority of America, you also said yesterday that, "precedent is not an inexorable command." And those are the words that Justice Rehnquist used arguing for the overturning of Roe.
So my question is, did you mean it that way?
ALITO: The statement that precedent is not an inexorable command is a statement that has been in the Supreme Court case law for a long period of time. And sitting here, I can't remember what the origin of it is, but I would bet that it certainly has been used in cases in which the court has invoked the doctrine of stare decisis and refused to go ahead and overrule.
FEINSTEIN: I always believe everything I read in The Washington Post.
(LAUGHTER)
ALITO: Well, that is an important principle.
(LAUGHTER)
FEINSTEIN: I don't know about that one, but...
ALITO: And I -- not the principle of believing everything in The Washington Post, but the principle that stare decisis is not an inexorable command, because then we would be stuck with decisions like Plessy and they couldn't be overruled except through a constitutional amendment.
But when an issue is one that could realistically come up, the people who would be making the arguments on both sides of the issue have a right to have a judiciary of people with open minds. And that means people who haven't announced in advance what they think about the issue and, more importantly, people who are not going to reach a conclusion until they have gone through the judicial process.
ALITO: And it's not a facade, it's not a meaningless exercise. It's a very important one.
FEINSTEIN: Let me try this: I'd like to read a line of questioning, of questions, that Senator Specter asked now-Chief Justice Roberts. And then I would like to ask this question: How do you disagree with this?
Here's the questions: Specter: "Judge Roberts, in your confirmation hearing for the circuit court your testimony read to this effect, and it's been widely quoted. Quote, 'Roe is the settled law of the land,' end quote. Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?"
Roberts: "Well, beyond that. It's settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes."
Specter: "You went on to say then, quote, 'It's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision, so it has added precedental value.'"
Roberts: "I think the initial question for the judge confronting an issue in this area, you don't go straight to the Roe decision. You begin with Casey, which modified the Roe framework and reaffirmed its central holding."
And Specter says: "And you went on to say accordingly, 'It's the settled law of the land," using the term 'settled' again."
And then your final statement as to this quotation: "There's nothing in my personal views that would prevent me from fully and faithfully applying the precedent as well as Casey."
Where do you differ? Since Justice Roberts made that statement in a confirmation hearing -- he not only got confirmed, he's the chief justice -- it seems appropriate for to you comment on it and say where you might differ with it.
ALITO: Well, the statement covers a lot of ground. And let me try to remember the major points. I certainly agree with the point...
FEINSTEIN: I can give it to you if you'd like?
ALITO: Certainly. I'd be happy to.
FEINSTEIN: Would that be helpful? Would somebody take it down to him? Show him the place.
(CROSSTALK)
(UNKNOWN): Be on the front page tomorrow?
(LAUGHTER)
ALITO: Well, Senator, I certainly agree with the point that the chief justice made about separating any personal views he has from anything that he would do as a member of the Supreme Court. I emphatically agree with that. That's the essence of what a judge has to do.
I certainly agree that Roe and Casey and all of the other decisions in this line are precedents of the Supreme Court. And they are entitled to respect under the doctrine of stare decisis. To the extent that some of the earlier decisions have been modified, then obviously the most recent ones are the relevant provisions of the Supreme Court.
I've agreed, I think, numerous times during these hearings that when a decision is reaffirmed, that strengthens its value as stare decisis. I agree that when the Supreme Court entertains a challenge to a prior decision and says, "We're not getting to a re-examination of the merits of the issue, we think stare decisis counsels against our going to that point," then that is a precedent on precedent. That seems to me to be entirely logical.
And we have a long line of precedents now relating to this issue. I have said that stare decisis is a very important legal doctrine and that there is a general presumption that decisions of the court will not be overruled. There needs to be a special justification for doing it, but it is not an inexorable command.
FEINSTEIN: But you do not agree that it is well settled in court?
ALITO: I think that depends on what one means by the term "well settled."
FEINSTEIN: I actually agree with you because others have said that and then gone out and voted to overthrow it. So it's like, "I have no quarrel with it."
ALITO: Well, let me just say this: As a judge on the court of appeals or if I'm confirmed as a justice on the Supreme Court, it would be wrong for me to say to anybody who might be bringing any case before my court, "If you bring your case before my court, I'm not even going to listen to you; I've made up my mind on this issue; I'm not going read your brief; I'm not going to listen to your argument; I'm not going discuss the issue with my colleagues. Go away. I've made up my mind."
That's the antithesis of what the courts are supposed to do. And, if that's what "settled" means, then I think that's not what judges are supposed to do. We are...
FEINSTEIN: Let me interrupt you for a moment, if I may.
You were willing to give your view on one man, one vote. And yet there are four case pending in the court right now on one man, one vote.
And that's where I have a hard time. The cases are LULAC v. Perry, Travis County v. Perry, Jackson v. Perry and G.I. Forum of Texas v. Perry.
That's where I have a hard time. If you're willing to say that you believe one man, one vote is well settled and you agree with it, I have a hard time understanding how you separate out Roe.
I understand why. If you say one thing, you upset my friends and colleagues on that side. If you say the other, you upset those of us on this side. But the people are entitled to know.
ALITO: I don't think it's appropriate for me to speak about issues that could realistically come up.
And my view of Brown v. Board of Education, for example, which was one of the cases that was cited in connection with this issue about where someone in my position should draw the line, seems to me to embody a principle that is now not subject to challenge, not realistically subject to being challenged, not within the legitimate scope of constitutional debate any longer that there should be facilities that are segregated on the basis of race.
ALITO: And that's where I've tried to draw the line. If an issue involves something that is in litigation, then I think it's not appropriate for me to go further than to say that I would be very respectful of the doctrine of stare decisis and I would not reach a decision on the underlying issue if one were to get to it without going through the whole decision-making process.
FEINSTEIN: OK, I'll let you off the hook on that one.
One of the reasons that some of us are so concerned about the commerce clause is because we see major law being overturned if the Rehnquist court continues its march. Let me give you an example in the environment. And these are cases that will be before you, so I don't expect you to comment on the case but to understand.
The Clean Water Act was passed in 1972, and it included a provision permitting citizens or citizen groups to bring lawsuits for violation of the act. In Public Interest Research Group of New Jersey v. Magnesium Elektron, a citizens environmental group sued a chemical manufacturer under the Clean Water Act for polluting a river used by members of the group.
The trial court found that the defendant committed 150 Clean Water Act violations. On appeal you were the decisive vote in a 2-1 decision overturning the trial court's decision, even though it was undisputed that the defendant committed the 150 violations of the Clean Water Act.
Your decision, as I understand it, was based upon your conclusion that the environmental group did not have standing to sue under the Clean Water Act because even though members of the environmental group had stopped using the river due to the pollution, they did not prove any injury to the environment.
The decision, if broadly applied, would have gutted the citizen lawsuit provision of the Clean Water Act.
Now, three years later, in Friends of the Earth v. Laidlaw, the Supreme Court, in a 7-2 decision, rejected this reasoning and held that a citizen only needed to show that he or she was harmed by the Clean Water Act violation. And didn't need to prove a broader injury to the environment.
FEINSTEIN: So you see where the concern comes with respect to overthrowing something on a technicality that can have enormous implications.
Do you agree with the Supreme Court's decision in Friends of the Earth v. Laidlaw.
ALITO: Well, it's a precedent of the court, and I have respect for it. And as you mentioned, it's governed by stare decisis, and as you mentioned, it was decided after the decision of my court in the Magnesium Elektron case, and I haven't gone back and thought about the question of whether Laidlaw creates doubt about the soundness of the decision in Magnesium Elektron.
If it does, then it does, and if the issue were to come up again before the 3rd Circuit, for example, and I sat on the issue, then I would follow Supreme Court precedent if I concluded that it was in conflict with the decision of a prior court of appeals decision.
Our jurisdiction under the Constitution is limited to cases and controversies. The Supreme Court has said that means you have to have a plaintiff who has suffered injury in fact.
And although there was a disagreement on the panel about the procedure we should use going forward, everybody on the panel agreed -- Judge Roth and I who were in the majority and Judge Lewis who dissented on a procedural point that I'll get to -- that the plaintiffs in that case had not even alleged personal injury.
They alleged that they enjoyed the Delaware River in a variety of ways. As I recall, they walked along the canal path, they ate fish from the river, they drank water from the river. But there was no evidence that the discharges into a creek some distance upstream from the river had had any effect whatsoever on the river and, therefore, there was nothing to support a claim that they were personally injured by the discharges of this plant.
ALITO: Now, there would presumably be other people who could take legal action against the plant for its violations of the law, and nobody would condone that. But our obligation under Article III is to confine ourselves to cases within our constitutional jurisdiction.
FEINSTEIN: Of course, you're going have two cases challenging the application of the Clean Water Act to nonnavigable waters under the commerce clause. And as you probably know, we have lost 90 percent of the wetlands in the United States. This is a very big deal.
And there are many of us that would hate to see wetlands be made virtually impossible because it's very difficult to prove when something becomes navigable as opposed to nonnavigable, which is the question before the court.
I only say that because if this march to restrict Congress, you could strike down the Endangered Species Act, you could strike down the Clean Water Act, you could strike down the Clean Air Act, and I think that would be catastrophic for the United States.
If I can, let me just switch to another topic. And a year ago, all of us became very concerned and involved and some horrified with the Terry Schiavo case.
As I recall the case, the local courts held that her life support could be turned off, the state supreme court held the same thing, and then there was an effort, and I think a federal district court held it to bring it up to the Supreme Court.
What do you believe the role of the federal courts should be in the arena of end-of-life decisions?
ALITO: There's a constitutional issue, certainly, at the bottom of that, and there are issues of jurisdiction. There are statutory issues. And Congress specifies the jurisdiction of the lower courts. And so Congress can give us a role in decisions of this nature or Congress can keep the federal courts out of it and leave it to the state courts where, for the most part, issues in this area have been adjudicated.
But if there is a federal constitutional right involved then, of course, the federal courts have traditionally been a forum for the adjudication of federal constitutional rights.
The underlying statutory, I'm sorry -- the constitutional issue is the one that the Supreme Court addressed in the Cruzan case and in the case of Washington v. Glucksberg.
And this is obviously one of the most sensitive issues that comes up in our legal system. It involves something that a lot of people have had to face and a lot more people are going to have to face, decisions involving the end of life.
ALITO: And with the advances in medical technology, this is going to be a very tough issue for an awful lot of people.
In Cruzan, the court proceeded on -- they said: We assume that there is a constitutional right to refuse medical treatment that a person doesn't want. And there certainly has long been a common law right to refuse medical treatment that a person doesn't want.
If somebody gives you medical treatment and you say I don't want it, and they perform an operation on you or do something like that, that's a battery under the common law and you can be sued.
And the Supreme Court assumed that that was a fundamental right under due process, but said that there wasn't a violation of the right under the circumstances in Cruzan, where the state of Missouri had imposed certain regulations that had to be complied with before a person who was comatose could be taken off life support.
And then in Washington v. Glucksberg, they addressed the issue of whether there was a constitutional right to assisted suicide, and they concluded that there was not but there were -- and they applied the standard to be applied under the due process clause for its substantive component, whether a right is firmly rooted in the traditions of our country and implicit in the concept of ordered liberty.
But there were some concurring opinions that recognized that these were issues that were on the cutting edge of medical technology -- let me put it that way -- or that they were issues on which more empirical evidence might become relevant in the future.
FEINSTEIN: Thank you very much.
I notice I just have 40 seconds left.
Will we have another round, Mr. Chairman?
SPECTER: Well, that's something that we'll talk about.
I would very much like to finish today.
SPECTER: As I said earlier, that may be an ambitious schedule, but let's talk about it.
FEINSTEIN: Thank you.
Contents
Prev
Next
Last
