Judge Alito and Internationalism

In the mass of articles about the newest U.S. Supreme Court nominee Judge Samuel Alito, there has been very little discussion about his views on international and comparative law (Roger’s post here is the great exception). This is probably because most activist groups really don’t care about his views on these questions and because his paper trail in these matters is very thin compared to his other writings.

Still, readers of this blog might ponder two indications that Alito is more of an internationalist than his comparisons to Justice Scalia might indicate. First, my Hofstra colleague Nora Demleitner, a former Alito clerk and professor of immigration and comparative law, lauds Alito here (via Volokh)for his majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), which denied asylum* to an Iranian woman but held that her home country’s gender-specific laws and social norms could be considered persecution for purposes of U.S. asylum laws. Nora calls this one of the most “progressive opinions in asylum law on gender-based persecution.”

Additionally, the Daily Princetonian reports here that Alito wrote his 1972 senior undergraduate thesis on the Italian Constitutional Court, which perhaps suggests he was actually ahead of the curve on comparative constitutionalism. Alas, as the Daily Princetonian reports, the Alito thesis is (mysteriously?) missing from university’s archives.

*My original post (and the Legal Times article I referenced) misstated the holding suggesting that the 3d Circuit panel actually granted asylum to the Iranian female petitioner. Actually, the petitioner was denied asylum on the grounds that she could not show she would have refused to follow gender-specific laws. Still, the opinion is still widely cited for recognizing that gender discrimination overseas could serve as the basis for political asylum.