Judiciary Committee, Minority Staff
Contact: Tracy Schmaler, 224-7703
See this document at: http://democrats.senate.gov/judiciarycommitteesupremecourt
Fact Check: Judge Alito and Fundamental Rights
When asked a question by Senator Leahy on the subjects of protecting fundamental rights and court stripping, Judge Alito took a position to the right of many prominent conservatives. Alito declined to say that Congress does not have the power to strip federal courts of their jurisdiction to protect such rights as freedom of speech and religion, freedom of the press, and the right to life, liberty, and property. Instead, he characterized the issue of whether Congress can limit the ability of the courts to hear cases as an academic debate on which scholars are divided. It is not. It is a fundamental question of constitutional law and the fundamental role of the courts - to protect the rights and liberties of Americans.
SENATOR LEAHY: So let me ask the same question that Senator Specter asked in 1986: Does Congress have the authority to say the Supreme Court does not have jurisdiction over First Amendment issues of freedom of speech, press and religion?
JUDGE ALITO: Well, I would give the same answer to that that I gave to the more general question you asked a few minutes ago about taking away the Supreme Court's appellate jurisdiction over a topic of cases. It's not a question that I have -- obviously have had to deal with in my capacity as a judge or something that I've written about or studied in any sort of a focused way.
In refusing to say that Congress cannot strip federal courts of their authority, Alito took a position to the right of many prominent conservatives:
Alito took a position to the right of Senator Specter: "Seems to me patently clear that the Congress cannot take away the jurisdiction of the Supreme Court on constitutional issues -- cannot do it. That's the principal function of the Supreme Court of the United States, is to interpret the Constitution. And if the Congress can take away that authority, the court's authority would be vacuous." [1/12/06]
Alito took a position to the right of former Chief Justice Rehnquist: Senator Specter described today how, during his confirmation hearing, the former Chief Justice had distanced himself from a previous article on the subject. Specter said that Rehnquist had said about his previous opinion: "I was wrong." [1/12/06]
In his confirmation hearing, Rehnquist was asked about "whether the Congress, in your view, has the authority to say the Supreme Court does not have jurisdiction on first amendment issues of freedom of speech, press and religion, because if the Congress has that authority, then it seems to me there is nothing left of Marbury v. Madison." His answer was:
Justice REHNQUIST. And I think that it would be very hard to uphold a law which carved out certain provisions of the Constitution such as you are describing, the first amendment, and say the Court should have jurisdiction over everything except first amendment cases. [Confirmation Hearings of Chief Justice Rehnquist]
Alito took a position to the right of former Senator Barry Goldwater: Goldwater said that the court stripping effort launched by conservatives in the 1980s was a "frontal assault on the independence of the Federal courts is a dangerous blow to the foundations of a free society." [New York Times, 10/27/96]
Alito took a position to the right of Robert Bork. Bork, at his confirmation hearings in 1987, said that the Congress could not strip the Supreme Court of its authority to enforce the Constitution. Bork also stated that the result of court stripping would be that, "you'd have 50 different constitutions running around out there, and I'm not sure even the conservatives would like the results." [Time, 9/28/81]
This issue was solidly resolved 200 years ago in the famous case of Marbury v. Madison, a case in which Chief Justice Marshall famously declared that, "It is emphatically the province and duty of the judicial department to say what the law is."
Real Life Consequences:
Our Constitution protects the most basic rights of all Americans: freedom of speech and religion; freedom of the press; the right to be secure against unreasonable searches and seizures; the right to not be deprived of life, liberty or property without due process of law; property rights; the right to trial by jury; and many other rights and liberties. The federal courts enforce these rights. The notion that Congress could strip the Courts of their power to do so is far outside the mainstream of legal thought.