MSNBC onscreen text falsely put Alito in majority on anti-discrimination case

Summary: During MSNBC's live coverage of Supreme Court nominee Samuel A. Alito Jr.'s confirmation hearing, scrolling onscreen text falsely suggested that Alito was in the majority in the Bray v. Marriott anti-discrimination case. In fact, Alito dissented in the decision that reversed the lower court's ruling on the case.

During MSNBC's live coverage of Supreme Court nominee Samuel A. Alito Jr.'s confirmation hearing, scrolling onscreen text falsely suggested that Alito concurred with three other members of the federal judiciary in an anti-discrimination case. Throughout the afternoon, MSNBC ran a quote from Alito in its scrolling text reading, "JUDGE ALITO: FOUR FEDERAL JUDGES LOOKED AT THE FACTS OF THIS CASE, WE THOUGHT THE EVIDENCE WAS NOT SUFFICIENT." In fact, Alito dissented from the majority holding in the case. Of the four judges who considered the case -- the district court judge, Alito, and his two colleagues on the U.S. Court of Appeals for the 3rd Circuit -- Alito agreed only with the lower court judge, whose decision was reversed by a 2-1 vote by the appeals court, with Alito in dissent.

During the hearing, Sen. Joseph R. Biden Jr. (D-DE) asked Alito about his dissenting opinion in the 1997 Bray v. Marriott decision. In the case, the plaintiff alleged racial discrimination under Title VII of the Civil Rights Act of 1964 when she was denied a promotion. Then New Jersey district court judge Maryanne Trump Barry -- now a colleague of Alito's on the 3rd Circuit Court of Appeals -- granted summary judgment against the plaintiff, Beryl Bray, in favor of her employer, Marriott Hotel Corp. A 3rd Circuit panel -- consisting of Alito, Judge Theodore A. McKee, and Judge Clifford Scott Green of the U.S. District Court of Eastern Pennsylvania, sitting on the appeals court by designation -- heard the case. McKee and Green reversed the lower court's summary judgment for the defendant and remanded the case. Alito dissented, arguing that the majority's decision to allow the case to go forward "represents an unwarranted extension of the anti-discrimination laws."

When Biden asked about the case, in the course of his reply, Alito explained:

ALITO: Now, four federal judges looked at the facts in this case. One was Judge Maryanne Trump Barry, who was then the district court judge and is now one of my colleagues on the 3rd Circuit. I was one. And we thought the evidence was not quite sufficient.

And then my colleague Theodore McKee and Judge Green, a district court judge from Philadelphia, fine district court judge sitting by designation, thought that the evidence was sufficient.

However, MSNBC ran the following onscreen text several times throughout the afternoon:

ON DISCRIMINATION SEN. BIDEN, D-DE, ASKED JUDGE ALITO TO EXPLAIN HIS RULING ON THE BRAY V. MARRIOT CASE [MSNBC LOGO] JUDGE ALITO: FOUR FEDERAL JUDGES LOOKED AT THE FACTS OF THIS CASE, WE THOUGHT THE EVIDENCE WAS NOT SUFFICIENT

But as Alito himself made clear, the "we" in question refers to himself and Barry, because "my colleague Theodore McKee and Judge Green, a district court judge from Philadelphia, fine district court judge sitting by designation, thought that the evidence was sufficient" to preclude summary judgment and remand the case to the district court.

—S.G.