Alito thesis offers few new clues

The senior thesis of Samuel Alito '72, provided to the University's Mudd Manuscript Library by his adviser and released today, is a meticulous historical study of the Italian Constitutional Court that appears to provide few clues about how Alito might rule as a justice on the Supreme Court.

The thesis, which he "researched in various sidewalk cafes in Rome and Bologna during the summer of 1971," according to Alito's yearbook entry, contains specific details of the political context of the court's early years, its power struggles with other Italian courts and its evolution regarding questions of the relationship between church and state.

Unlike many modern-day Wilson School undergraduate senior theses, however, Alito's work does not contain any specific policy recommendations, for the Italian court or otherwise. In contrast, his work on a Wilson School undergraduate conference studying privacy rights seems to offer more value to observers seeking clues as to the nominee's public policy positions.

While it remains unclear to what extent, if any, Alito's report for that project represents his current views, his work there is notable because it recommended the creation of a federal privacy ombudsman, the limiting of domestic surveillance by the government, the decriminalization of sodomy and the barring of employment discrimination based on sexual orientation.

Alito's thesis, on the other hand, while short on lofty pronouncements on judicial philosophy, nevertheless contains statements that may be of value in discerning aspects of the nominee's judicial perspective.

In the preface to his thesis, he argued that "the myth of the judge as an automaton, as disinterested finder of the law, is probably stronger today in Italy than in America."

Yet Alito concluded that the Italian court was "deeply divided along lines of ideology and partisan politics; that the justices vote according to their politics on most cases; and that the various factions attempt to form coalitions in order to assemble a majority."

Following on that point, Alito — whose nomination by President Bush, though criticized by some, has been hailed by both Democrats and Republicans — chose to conclude his thesis by quoting directly from a 1971 report in the magazine Civilta Cattolica, in what is perhaps the strongest statement of his judicial perspective offered in the document:

"We should ask if this [partisan behavior] is what the Italian people, who had just regained their liberty, desired when ... they established that the new Constitution would be protected ... by a supreme and impartial organ of Constitutional justice," the quote reads.

"We should ask at the same time," it continues, "whether these eminent men ... instead of applying and teaching 'the same law for all,' taught or applied above all the political ideas of the party or fraction of a party to which they belonged."

"In Italy, a judgeship is not the culmination of a career as a practicing attorney," wrote Alito, who has served as a deputy assistant attorney general, U.S. Attorney for the District of New Jersey and, for the past 15 years, as a judge on the U.S. Court of Appeals for the Third Circuit. "[N]o judges stand for election; judgeships are never distributed for political reasons; and no one can enter the judiciary except at the lowest level."

The most interesting chapter of Alito's 134-page thesis is one focusing on the court's decisions on questions of church and state in a nation with a Catholic majority and rich religious heritage.

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Though Alito refrained from offering his personal views on the cases before the court, he looked at several questions concerning its rulings on divorce, birth control, adultery laws, oaths that included swearing before God and whether an apostate priest could serve as a town mayor.

Alito described the context and details of each case, noting the dynamics between the Italian government, the Vatican and public opinion, as well as between the constitutional court and other Italian courts. But while legal terms familiar to most Americans — including freedom of thought, freedom of religion and freedom of expression — appear frequently in his writing, Alito made nearly no explicit comparisons between Italian constitutional thought and the work of the U.S. Supreme Court.

"Writing a senior thesis about the Italian Constitutional Court is not as absurdly ambitious as writing one all about the United States Supreme Court," Alito conceded in his preface.

"I chose to investigate the Court's work [on church-state questions]," Alito wrote, "because it is important, because it has probably been the most controversial, and because it is the area in which the clash of interest groups can be observed most clearly."

In a section discussing the backgrounds of the various judges who served on the court, Alito noted that judges' "regional ties, their age at appointment, the social class of their parents, their professions and their participation in partisan politics" are all characteristics that "probably have a bearing on the judges' performance on the Court."

After noting the average age of the judges and that "Southerners have dominated the Court because they dominate the legal profession in Italy generally," Alito went on to discuss the jobs of the various judges' fathers, which included "a wealthy businessman," "a wealthy sculptor," "a well-to-do farmer" and "an Army fencing master." He also notes that "[n]one were the sons of factory employees or laborers."

Alito's own father, Samuel Alito, Sr., served as director of New Jersey's nonpartisan Office of Legislative Services from 1952 to 1984. Alito's mother, Rose, was a teacher.

The original Mudd Library copy of Alito's thesis was lost during the 1970s along with hundreds of others. It was recovered when Walter Murphy, the McCormick Professor of Jurisprudence, Emeritus and Alito's thesis adviser, made a copy available to the University.