Wednesday, November 09, 2005

Alito's Senior Thesis on the Italian Constitutional Court

As Julian reported yesterday, Samuel Alito's 1972 Princeton senior thesis, "An Introduction to the Italian Constitutional Court" is now in the public domain. It is available here. The Daily Princetonian has a short summary here.

There are several interesting aspects of the thesis. First, it is quite a remarkable piece of work. It is no small feat for a twenty-two-year-old to have sufficient facility in another language and sufficient analytical prowess before law school to undertake such a constitutional analysis. His thesis advisor said he has only kept a half-dozen theses in all his years, and Alito's was one of them. "Sam just had to start from scratch... I've used it over the years in my work." Alito is so detailed that he examines the professions of the justices' fathers in hopes of discerning clues as to their judicial philosophy. "I was able to discover the occupation of the fathers of 22 of the 33 justices. Not unexpectedly, the middle class professions are well represented....For the rest, one justice was the son of a railroad station master, one of a clerk, and one of an Army fencing master." (p. 38-39).

On the impact of change in court personnel, Alito discussed Justice Giuseppe Branca's 1970 remarks approving "how much bolder and more liberal the Court had become during the past two years" and noted that part of the explanation was the change of a few justices on the court. Quoting Branca, "It is not necessary for a liberal or ultraliberal justice to replace a conservative; it is enough for the conservative to be replaced by a man whose conservatism is less political and less stern, a man who is more humane and more sensitive to new social outlooks." (p. 26). Alito later described the Branca Court as one that was "bold, reformist" and "unafraid to take on sensitive Church-State issues ... unheedful of precedent." (p.73).

There is surprisingly little by way of comparison between the Italian courts and other courts. There are a few explicit comparisons, such as Table 3.4 comparing the average ages of justices and years of eligible service in Italy and seven other countries. (p. 52). But mostly the comparisons are passing remarks. For example, he states that "The Italian judiciary is organized very differently from America's or Britain's. In Italy, a judgeship is not the culmination of a career as a practicing attorney; no judges stand for election; judgeships are never distributed for political reasons." (p.44). Elsewhere he stated: "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." (p.99). In describing the different roles of precedent in civil and common law countries, Alito remarked, "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." (p. 120).

By far the most important chapter is his analysis of church-state decisions in Italy. The chapter includes discussion of birth control, marriage, religious oaths, freedom of expression, divorce, and adultery. Particularly useful is his discussion of what we would today call a "constitutional moment" of liberalization in the late 1960s. "What caused the Court to change direction in the Church-State area in the late sixties is problematic. The change in this area corresponded to the Court's general liberalization during the presidencies of Sandulli and Branca. The explanation may be in personalities of Sandulli and especially Branca, a few substitutions on the Court, the swing leftward in the sixties of Italy's governing coalition, the Vatican's decision after the death of Pope Pius XII to play a less active role in Italian politics... or simply the drift of public opinion in Italy and the world." (p. 101-02). Alito concludes the chapter by quoting at length the Vatican's criticism of the leftward shift in the Court's jurisprudence on divorce. (p. 112-13). Quoting from Civiltà Cattolica:
We should ask if this is what the Italian people, who had just regained their liberty, desired when ... they established that the new Constitution would be protected against Parliamentary violation by a supreme and impartial organ of Constitutional justice.... We should ask at the same time whether these eminent men, when they occupied university chairs or sat on an ordinary court, 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."
Alito likewise appears critical of the Court's liberalization in the late 1960s, sensitive to the importance of consistency in constitutional decision-making. "The Constitutional Court has been far more willing than the Court of Cassation to disregard 'precedent.' The Constitutonal Court's quick turn-abouts on the adultery and birth control laws ... are glaring examples. They are testimony to the weak place 'precedent' holds in Italian law; it is difficult to think of two comparable reversals by the American Supreme Court." (p. 120-21).

Alito concludes the thesis with a quip about future judicial activism of the Italian Constitutional Court: "The Court is likely to retreat somewhat in the next few years from the advanced position Branca staked out. 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." (p. 131).

We cannot make too much of a senior thesis written over thirty years ago. But one thing is for sure, from a very early date one can discern that this man Alito is a heavy-weight.


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