This column was written by Joseph Lindsley.
"Every idle word that men shall speak, they shall give account thereof in the day of judgment," warns the Gospel of Matthew. Matthew is referring to eternal judgment, though his words apply equally to Supreme Court nominees appearing before the Senate Judiciary Committee. Inspired by the example of activists and senate aides who scour every thought ever recorded by a nominee in hopes of finding some incriminating comment, I read Samuel Alito's 1972 Princeton senior thesis on the Italian Constitutional Court.
Alito's judiciousness and maturity were evident even when he was a student at Princeton's Woodrow Wilson School. In fact, his 134-page work so impressed Professor Walter F. Murphy that it is one of the few essays Murphy has saved over the years. Alito's ambition – evidenced by his selection of a topic that required considerable research in a foreign language – was supported by an impressive work ethic. His thesis is thorough – perhaps even too thorough, including details such as "Parliament adjourned for summer vacation a few days later." It is not riveting, but it is chock full of facts, lucidly presented.
At the outset of the paper, Alito suggests that he could have been more go-getting, noting that "writing a senior thesis about the Italian Constitutional Court is not as absurdly ambitious as writing one all about the United States Supreme Court." Exhibiting the qualities of a careful thinker, he cautions that his paper is "tentative." Though most of the thesis is an explanation of how the court functions, how the justices are chosen, and how the court came to be, at times Alito offers quick glimpses into his own attitudes toward the law: For example, he notes that "the myth of the judge as an automaton, as disinterested finder of the law, is probably stronger today in Italy than in America." Elsewhere he refers in passing to "the pervasive myth of mechanical jurisprudence." (Of course, deeming mechanical jurisprudence a myth could lead either to judicial activism or judicial modesty.)
Avoiding blunt assertions, his essay is sprinkled with a couple subtle, revealing, observations. His best zinger is a knock on the constitutional shenanigans American justices employ to advance their policy views: "Engaging in the sort of procrustean construction which is common for the United States Supreme Court, the Italian Constitutional Court interpreted article 553 not to forbid the dissemination of all information about birth control, but only dissemination which offended public decency." Alito also notes the verbosity of America's high court, when he writes, "The Italian Court may cite a precedent in every third case whereas the average for the American Court may be closer to every third sentence." But these instances constitute his only direct references to American jurisprudence. He does, though, spend a portion of his essay, in a chapter called "Style and Role," discussing the Italian high court's neutrality regarding precedent; "the doctrine of stare decisis emphatically does not exist," he notes.
One passage sounds, to the contemporary ear, as though he could be describing the atmosphere of judicial politics in 2005. Italian constitutional court justices are selected by three different entities – the president, the courts, and parliament. Alito reports on the bickering that characterized the legislators' selection process in 1955 until the center and left parties finally found a candidate "whose background was ambiguous enough to please everyone. The left – and the right – said [Nicola Jaeger] was a member of the Communist party with a card to prove it. The Christian Democrats asserted that he was a loyal Catholic who attended Mass every Sunday. The Socialists claimed that [Socialist] Nenni had suggested Jaeger to President Gronchi [ . . . ] Interviewed in his home in Milan, Jaeger himself denied having ever been a member of a political party or having ever taken a position which could be described as political on any issue."
One might fairly think that Alito has a mind disposed favorably to religion for he devotes one of the six chapters, "A Sample of the Court's Opinions," to "questions of Church and State." He concludes the essay with a prediction of his own, suggesting that the court will continue the activism to which it had become accustomed. "The Court is likely to retreat somewhat in the next few years from the advanced position Branca staked out," he writes. "But in a country in which Parliament is often deadlocked and with the taste of power in its mouth, the Court is unlikely to ever renounce an active role." With the taste of power in his mouth, what would Alito do? The not-so-idle words of his thesis, at least, suggest a careful and modest sensibility reigning in a rather intelligent and fertile mind.
By Joseph Lindsley