Judge Samuel Alito and Fathers’ Rights

With the naming of Judge Samuel Alito by President Bush as his nominee to the US Supreme Court, many in the fathers’ rights movement are speaking favorably about the nomination.

Who is Judge Alito? 

Samuel A. Alito, Jr., 55, is a judge on the U.S. Circuit Court of Appeals for the 3rd Circuit, based in Philadelphia. Nominated by President George H. W. Bush to the court in 1990, Alito was educated at Princeton University and Yale Law School. His work experience includes time as assistant to the Solicitor General and deputy assistant to the Attorney General during the Reagan Administration, and as U.S. Attorney for the District of New Jersey. Consistently conservative, Alito has been nicknamed “Scalito” or “Scalia-lite” by some because his judicial philosophy tends to be similar to Supreme Court Justice Antonin Scalia. As might be expected, conservatives offer positive comments about Alito’s work as an appellate judge. He is a strict constructionist and has been a consistent supporter of the first amendment, free speech and freedom of religion. Liberal groups, on the other hand, say his nomination raises concerns, given his “lackluster” record on civil rights and abortion.

Alito and Fathers’ Rights: the Casey Case

One of the clues we have as to Judge Alito’s take on fathers’ rights comes from his controversial dissent in Planned Parenthood v. Casey. In this case, Planned Parenthood filed suit challenging the State of Pennsylvania’s law that required women in Pennsylvania seeking abortions to inform their husbands of their plans. In his dissent, Alito opined that “the Pennsylvania Legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems — such as economic constraints, future plans or the husbands’ previously expressed opposition — that may be obviated by discussion prior to the abortion.” Even though the spousal notification portion of the Pennsylvania law was struck down by the Supreme Court, Alito’s view was mentioned by former US Supreme Court Chief Justice Rehnquist in his dissent.

The Baxter Case

Another case with fathers’ rights implications was the case of the Baxters. Henry and Jody Baxter and their six year old son lived in Australia. Jody Baxter wanted to return home to visit family in Delaware; the agreement was that they would go to the U.S. and father Henry would join them for Christmas a few weeks later. Jody subsequently wrote to Henry about two weeks into the vacation to indicate that she had met a man, wanted to divorce Henry and keep custody of their son. Henry protested and filed suit to protect his parental rights and have his son returned to Australia. The case found its way to the 3rd Circuit Court of Appeals, where Judge Alito and his two colleagues in the 3rd Circuit concluded that law required that the boy be returned to his father in Australia.

The decision was based on the fact that there was a disagreement as to whether the family meant to relocate permanently to Delaware, and that the divorce and custody case should be decided in Australia under international law. Alito’s view on spousal notification and on custody law signal a view on fathers’ rights which may bode well for fathers in judicial decisions in the future. With a willingness to acknowledge the role of fathers in reproductive rights, many in the fathers’ rights community see Alito as potentially a sympathetic justice in issues related to custody and parental rights.

This article first appeared on about.com’s section on Fatherhood.

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