It's probably a coincidence that both events happened on Jan. 30, but Samuel Alito's elevation to associate justice of the U.S. Supreme Court inspired a strange connection in the mind of one First Amendment attorney.
"That's probably what killed Coretta Scott King," quipped the anonymous barrister, who's well aware of both the late Martin Luther King's life work as well as the new justice's attitudes on voting rights and discrimination against minorities.
"This is a tragedy for all civil rights concerns," attorney (and Free Speech Coalition board chair) Jeffrey Douglas asserted when told of the comment. "Alito's record as an administration attorney establishes a commitment to the power of the executive over Congress and over all individual rights. He will be a more dangerous Supreme Court justice than Scalia because he wishes to accomplish his agenda by stealth rather than honesty."
Douglas was hardly the only adult industry attorney to doubt how friendly Alito will be to industry concerns.
"Alito's a disaster," stated Denver-based First Amendment attorney Michael Gross. "I'm usually pretty optimistic, but ..."
"I think he's a judicial minimalist, and that's what concerns me," Gross continued. "It's what he claims to be, but his memos in '85 indicate that he's truly a Republican in his heart. He talked about how, when he was growing up, he saw all these privileged people acting in irresponsible ways, in contrast to his own blue-collar background, and that's kind of an indication to the cultural conservatives that he shares their belief that this country went to hell in the '60s and we've never been the same; that we're falling into the grasp of Satan as a result, after the '60s, and that we should all go back to being Ozzie & Harriet in the '50s. That's when life was good and white men ruled, you know, and women and minorities knew their place, and all this free expression crap – that's why we're rotting from the core, because of all this free expression and liberalism."
First Amendment attorney Paul Cambria is similarly worried.
"His background is that of, obviously, a very staunch conservative, someone who appears to have a problem with Roe v. Wade," Cambria assessed, noting Alito's refusal at his confirmation hearings to be bound by precedent regarding the seminal abortion-rights case. "He seems to be supportive of the First Amendment when it deals with religious issues, but we see no real track record on him when it concerns adult issues. All we can hope is that we're pleasantly surprised, but you know, if it walks like a duck, quacks like a duck ..."
"So I hope for the best and I assume the worst," he continued. "I don't know how many Earl Warrens come around in someone's lifetime; I'm hoping for my second one in much the same way as my Jewish brethren are hoping for the Messiah. I don't think there's a chance in the world, but we don't know. The thing that bothers me is if they get up there and, under oath in these hearings, keep telling how they're going to be objective and all the rest of it, but then they revert right to the predicted behavior. I think you should be able to recall them if they do that."
Indeed, all judges, including Supreme Court justices, "shall hold their offices during good behavior," according to Article III of the U.S. Constitution, and Douglas notes that no justice has ever been impeached.
"It's never happened," Douglas said. "Gerald Ford introduced a bill to impeach Chief Justice Earl Warren due to the Court's ruling in the school prayer case [Engle v. Vitale, 1962]. He also introduced a bill to declare the United States a Christian nation."
Cambria, however, saw a glimmer of hope in Alito's first action on the high court, a vote to stay the execution of confessed murderer Michael Taylor while his attorneys appeal based on the argument that a lethal injection violates the Eight Amendment prohibition against "cruel and unusual punishment."
"It's interesting to me that Alito decided to immediately vote with the non-conservatives on the death penalty stay," Cambria said. "That might be a throw-away. Think about it: It's not something on the merits; it's just a stay till there's a hearing, and so it could immediately throw everybody off."
Gross agreed.
"There's a procedural issue and a substantive issue and it's very complicated, but they're going different ways on it," Gross explained. "The U.S. Supreme Court denied the state's motion to vacate the stay by a 6-3 vote, and the three dissenters were Roberts, Scalia and Thomas, and Alito on his very first vote on the Supreme Court apparently went along with the anti-death penalty people and voted to delay the execution. Of course, if he'd gone the other way, we'd all be saying he's a conservative asshole, but since he went this way, all the conservatives are saying he's a liberal idiot, but who the hell knows? But at least he's not joined at the hip with Scalia, at least on Vote #1. And he went with Justice Kennedy, who's pretty darned conservative too on death penalty cases, so it's not like Alito's out there with all the liberals alone."
"He may be a cultural conservative; that's Scalia's approach," Gross continued. "Thomas is a little more libertarian, particularly in the context of the First Amendment – a lot more libertarian, although he's got a righteous streak for sure. Roberts is pretty much another Rehnquist, so that puts Justice Kennedy in the middle of the court, and in terms of First Amendment expression, he's an excellent judge. In terms of stuff we deal with, Kennedy seems to really be interested in technological solutions to the problem of the Internet and obscenity and children and so forth."
But Cambria's partner, Roger Wilcox, thinks Alito is still an unknown.
"Justice Alito was not involved in many adult industry cases while he was on the Third Circuit Court of Appeals, so I think the jury’s out on that issue," Wilcox said. "I know he’s acted to protect the First Amendment in other contexts, like school speech, but how far he’ll go for adult businesses is unknown. In a fairly well known bookstore case, Phillips v. Borough of Keyport, he concurred with the majority’s ruling that the Borough needed to provide evidentiary support for the claim that adult entertainment uses create adverse secondary effects, but he dissented from the portion of the majority opinion that concluded the plaintiffs had properly stated a substantive due process claim related to revocation of their zoning permits. Yet, in Rappa v. New Castle County, an outdoor sign restriction case, Judge Alito's concurrence reflects genuine concern that a government’s regulation of speech actually be narrowly tailored to advance a substantial government interest. He would have struck down one portion of the county law under his formulation of the intermediate scrutiny test."
"So, it’s a mixed bag," Wilcox concluded. "I doubt Justice Alito will bend over backwards to rule in favor of adult businesses, but some of his Circuit Court opinions suggest that he expects the government to justify speech regulations with evidence of need for such restrictions. An important test will be the first Alameda Books issue he addresses."
Douglas, however, was much more pessimistic.
"The court tends to split into three groups, and even when the court appears to be loaded in one direction or another, it tends to split into three equal factions: conservative, moderate and progressive," Douglas assessed. "The problem is, there are no more progressives on the court, and so you go from moderate to conservative to extremely conservative, so if Alito all of a sudden comes loose from his moorings and starts drifting, he is simply going to drift from the extreme right to the very right."
"That historical tendency of judges to moderate comes from a period when judges were not vetted as closely as they are now," Douglas continued, "and I deeply believe that now, before a nominee to the Supreme Court is announced, there have been under-the-table commitments on very particular positions."
"I believe that Alito is fully committed to a right-wing activist agenda. He won't just say, 'Roe should be overruled'; he will actively subvert Roe, chip away at it piece by piece. He announced that that was his agenda when he was applying for jobs with the Reagan administration, and I believe he is utterly sincere in that. Of course, any commitments Alito may have made to his supporters obviously are not enforceable, but for instance, [journalist] Nina Totenberg, who's as knowledgeable about the inner workings of the Supreme Court as probably any non-court personnel could possibly be, when she was talking about Alito's confirmation hearing, she noted that he made certain pledges, and then said, 'Of course, Clarence Thomas pledged his commitment to precedent as well, and it's obvious that he doesn't believe in precedent at all,' and for Nina Totenberg to say of the seat of justice that they do not believe in precedent, that's as harsh a criticism as I've ever heard anyone make of Thomas. Alito also nominally committed to precedent, but it's meaningless, because what are they going to do when he turns out to be another Clarence Thomas? Make faces at him? No, they'll just trumpet him as a 'true advocate of judicial restraint.' The most activist judge on the court since William O. Douglas and they'll call him an advocate of judicial restraint."
J. Michael Murray, who actually has a bit of experience with Alito – he argued an adult cabaret case before him when he was on the Third Circuit Court of Appeals – is concerned about Alito's elevation as well.
"It appears to me that Justice Alito is going to be probably more aligned with those justices who are less friendly when it comes to the First Amendment rights of those speakers whose subject matter has a sexual theme to it," Murray predicted. "Let's just hope there are no further appointments available before the next election. We've got to be out there fighting for our freedoms and we've got to be out there trying to elect congressmen and senators and ultimately a president who is more sympathetic to the freedoms that are what separate us from other countries."
