Lawyer Talk

Big Supreme Court news makes things interesting around the office. Folks have been discussing the Alito thing for a day now. One of my colleagues went to UW Madison and was a student of the blogging law prof Ann Althouse. She had an interesting piece about Alito in the NYTIMES today.

She address the "Scalito" moniker making the rounds:

Well, quite aside from the tedium of cliché, we might want to consider whether Judge Alito really is all that much like Justice Scalia. If you're old enough, you might remember how savvy it once seemed to respond to the nomination of Harry Blackmun by lumping him with Warren Burger and calling them "the Minnesota Twins."


Althouse then points out some interesting decisions from Alito's days on the Federal Court of Appeals:

Judge Alito, since he sits on a lower court, is surely bound by Smith; but in two later cases he found room to protect free exercise rights by holding the government to a tough standard about what deserves to be called a neutral, generally applicable law. In a 1999 New Jersey case, he decided in favor of two Muslim police officers who wanted to grow beards, which they cited as a religious obligation. He reached this outcome by determining that their police department's policy of banning beards was not neutral and generally applicable because it included a single exception (for people with a skin problem aggravated by shaving).

Judge Alito used a similar approach to limiting the Smith decision last year in Blackhawk v. Pennsylvania, in which he sided with a Lakota Indian who claimed he derived spiritual powers from two black bears and demanded that the state waive fees imposed on those who keep wildlife. Both decisions displayed a sensitivity to the needs of adherents of minority religions that was absent from Justice Scalia's opinion in the Smith case.


Another interesting Alito note - - I work with a woman whose last name is Alioto. I've modified my spell-checking dictionary to accept her name, but now it wants to use Alioto for Alito. Perhaps until this is all wrapped up, I should add both Alito and Scalito to my dictionary.

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