Supreme Court Justice Samuel Alito lacks “either understanding or interest” in the discrimination faced by women, African Americans or Latinos, according to federal Judge Harold Baer.
The impetus for this comment was a dispute between Alito and Baer over one of Baer’s rather unusual practices in class action lawsuits. Last month, Alito published a statement criticizing Baer for asking law firms representing class action plaintiffs to “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” This practice appears to be idiosyncratic to Baer’s courtroom, and it also does not appear to be limited to matters where race or gender is a factor in the case. The particular case that triggered Alito’s criticism, for example, was an antitrust suit challenging the merger of two satellite radio companies.
Whatever the wisdom of Judge Baer’s practice, however, it is difficult to look at Alito’s record and see a judge who is very concerned at all by discrimination against women or minorities. Alito authored the Court’s infamous opinion in Ledbetter v. Goodyear Tire, a decision that was widely criticized for rolling back women’s right to equal pay for equal work. That decision was eventually overruled by Congress.
More recently, Alito authored an opinion making it far easier for workplace supervisors to get away with racial or sexual harassment. Although federal law provides fairly robust protection to workers harassed by their supervisor, Alito’s opinion in Vance v. Ball State University defined the term “supervisor” so narrowly as to render it meaningless in many workplaces. Under Vance, a person’s boss is only their “supervisor” if they have the power to make a “significant change in [your] employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Thus, in many modern workplaces where final employment decisions are made by distant human resources managers and not direct supervisors, many victims of racial or sexual harassment will find themselves without recourse thanks to Justice Alito.
On the same day that Alito handed down Vance, he also voted in another case to make it easier for employers to retaliate against workers that complain about workplace discrimination and get away with it. Alito’s also voted to give employers an easy way to immunize themselves from class action lawsuits brought by their workers. And he’s a strong supporter of “forced arbitration,” a practice which allows employers to shunt discrimination lawsuits into a secretive and privatized arbitration system rather than allowing those cases to be heard by a real court.
Yet, for all that Justice Alito has done to prevent women and racial minorities from fighting discrimination in Court, he took a very different tone when faced with a group of mostly white plaintiffs alleging discrimination. In the high-profile case of Ricci v. DeStefano, a case brought by a group of predominantly white firefighters alleging that they were wrongly denied promotions, Alito authored a strongly-worded concurring opinion accusing the defendants of bowing to their “desire to placate a politically important racial constituency.” The mostly white plaintiffs, Alito concluded, “have a right to demand  evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.”
The skepticism Alito showed in so many other opinions towards plaintiffs alleging discrimination suddenly abandoned him when white people made such an allegation.
Shortly after President George W. Bush nominated Alito to the Supreme Court, the New York Times reported that Alito once belonged to an organization called “Concerned Alumni of Princeton,” a conservative group which accused his alma mater of sins ranging from encouraging the use of birth control to “diluting the explicitly Christian character of the school.” One of the organization’s leading complaints was that Princeton was admitting too many minority students and not enough children of alumni. A Concerned Alumni of Princeton brochure warned that “[t]he unannounced goal of the administration, now achieved, of a student population of approximately 40 percent women and minorities will largely vitiate the alumni body of the future.”
Alito, who was neither a major donor nor an active leader of the group, defended his membership by claiming that he joined the organization because he agreed with their position that the Reserve Officers Training Corps should remain in Princeton’s campus. That very well may be the real reason why Alito belonged to an organization that derided the very presence of significant numbers of women and minorities on an elite university campus. Nor can Alito fairly be judged solely by the decisions he made as a young man. Many people held abhorrent beliefs shortly after graduating from college, only to grow into much more enlightened adults.
But Justice Alito has also had several years on the Supreme Court to demonstrate his commitment to abolishing discrimination against women and racial minorities. What he’s shown instead is a desire to roll back anti-discrimination law, even while he rails against discrimination against white people.