Judge Alito

Having read about 60 opinions by Judge Alito, focussing on his dissenting opinions, I thought I might record some preliminary observations. Some distinctive patterns are emerging. (There is an overlap between what is said here and what I say in short pieces yesterday in the Washington Post and The New Republic.)

1. The tone of his opinions is unfailingly respectful, low-key, cautious, and reasonable.
2. The quality of his opinions is well above any "bar" for Supreme Court nominees. They're careful and solid. To be sure, there are some truly extraordinary Republican appointees out there, including Judges Easterbrook (7th Circuit), Ginsburg (DC Circuit), Posner (7th Circuit), and Williams (DC Circuit). Judge Alito's opinions don't show the brilliance of those of eg Posner, or the tremendous analytical power of those of eg Easterbrook, Ginsburg, and Williams. Nor do they appear, on initial reading, to be as high-quality as some of those by Chief Justice Roberts. But they're certainly good and often better than that.

3. When Judge Alito dissents (and I'm speaking of pure dissents, not of "concurring and dissenting"), there is a clear pattern: He is highly likely to be more conservative than the majority from which he is dissenting. In the overwhelming majority of cases, he stakes out a position to the right. Actually there is a more specific pattern: Judge Alito's dissents frequently defer to a powerful institution -- a prison, a government agency, an educational institution, a zoning board, a large employer, a prosecutor's office. From his dissents, at least, he does not seem to have, as many conservatives (including eg Judge Posner and Judge Michael Luttig) do, a significant libertarian streak, attempting to protect individuals against institutions.
I hasten to add that individually, each of his dissents is at least plausible; some of them are convincing. What is noteworthy, at least on preliminary investigation, is the overall pattern.
4. Here are some examples:
-- A prison banned certain prisoners (bad ones, mind you) from getting newspapers or magazines from the prison library or the publisher. The majority struck down the ban under the first amendment, over Judge Alito's dissent.
-- Without specific permission from a search warrant, police officers engaged in a strip search of a 10 year old girl and her mother. (The father/husband was a suspected drug dealer.) The girl and the mother sued on the ground that the physical invasion violated their constitutional rights. The court held that the suit could go forward; Judge Alito said the police officers were entitled to immunity
-- A Hindu temple was subjected to a range of severe land use restrictions. The court said the zoning board's conditions were arbitrary and baseless, and therefore unlawful. Judge Alito dissented.
-- A citizen of China sought asylum in the US on the ground that he would be subject to prosecution under China's state security law. The court held that the prosecution was legally sufficient to support the asylum claim. Judge Alito disagreed.
There are many other cases in this general vein, involving racial discrimination, the rights of criminal defendants, workers' rights under the Fair Labor Standards Act, and much more.
5. Judge Alito is much more low-key and much less ambitious, from the theoretical point of view, than Justice Scalia. But he does show one commonality with him: He emphasizes the plain meaning of legal texts, and seems to distrust legislative history or extrinsic sources. (This is more than reasonable and is not, by itself, a legitimate source of concern in the confirmation process.) But -- and it's an important but -- very few of his dissenting opinions stem from the "plain" meaning of the law. In almost all of them, the legal materials were not clear, and the majority's position was at least a reasonable interpretation.
6. It's also true that the Third Circuit is one of the relatively more liberal circuits. But Judge Alito isn't, most of the time, dissenting from ideologically-driven or even notably "liberal" opinions.

President Bush does deserve a lot of credit for selecting someone with extraordinary and relevant experience, and also with all the ability to be a distinguished member of the Supreme Court. And the foregoing is based only on extremely partial information -- about 20% of Judge Alito's published opinions. There's much more reading to be done; information first, then judgments. But there's already something to ponder here.

Comments

[cfw]

Does volume of opinions (I hear 300 over 15 years) suggest the dissents might have been used a bit to give clerks a chance to show their stuff (and not as vehicles to express philosophy)? Could be interesting to hear how he used clerks.

Also interesting would be some description of how he managed to lose a 15 month trial against 20 mafioso. Must have been a serious psychic trauma, if it was largely "Alito's baby" from start to finish. That experience might help explain his subsequent tendency (if it is a tendency) to genuflect toward authority vs. the individual.

Tendency to defer by reflex to authority gives cause for concern about how he might rule on a Hamdan case, or a case about legality of CIA torture chambers, yes?

[Jonathan M]

What do you think about this article re: his image as an abortion advocate?

http://www.csmonitor.com/2005/1102/p01s04-usju.html

[Louis Proyect]

In 1986, Alito helped write a opinion that employers could legally fire AIDS victims because of a "fear of contagion, whether reasonable or not." Alito honed a new edge to the notion of strict constructionism by arguing that the employers were justified in so doing because discrimination based on insufficient medical knowledge was not prohibited by federal laws protecting the disabled.

full: http://www.counterpunch.org/cockburn11022005.html

[Zev]

You wrote that you have focused upon Judge Alito's dissenting opinions. How do his concurring opinions contrast to his dissents? Over on SCtNomination (http://www.sctnomination.com/blog/archives/candidates/alito) his opinions appear, while conservative, to also take into consideration issues such as feminism (Fatin v. INS), homosexual discrimination (Shore Regional High School Board of Education v. P.S., 381) and habeas corpus (Williams v. Price). Is he as far right as you might have depicted in your interview to NPR?