Monday, January 31, 2011

Judging Alito: The Power of Positive Thinking

      Donald Specter had reached a critical point in his argument before the Supreme Court defending a lower federal court’s order to reduce prison overcrowding in California when Justice Samuel A. Alito Jr. interrupted. “This is going to have,” the justice began, but caught himself, “it seems likely to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see.”
      Specter, who directed the months-long trial for the Berkeley-based Prison Rights Project, knew that the three-judge court had actually concluded otherwise. “Well, based on the experience in the other jurisdictions,” Specter answered, “the court found we wouldn’t.”
      As noted at the time by law professor and blogger Garrett Epps, Alito’s comment during the Nov. 30 argument in Schwarzenegger v. Plata went against the normal rule requiring appellate courts, even the Supreme Court, to defer to findings by lower courts. But certitude has been Alito’s hallmark in what is now [Jan. 31] five years since he joined the high court.
      As predicted by Democrats and liberal groups who unsuccessfully tried to block his confirmation, Alito has staked out a position at the far right of the court’s ideological spectrum, in some respects even more ideologically pure than fellow conservatives Antonin Scalia and Clarence Thomas. In the process, Alito has become the court’s most powerful justice, enabling the conservative majority to shift American law to the right on such hot-button issues as abortion rights, campaign finance regulation, school integration and gun control.
      True, Justice Anthony M. Kennedy plays a pivotal role by siding at times with the conservative bloc led by Chief Justice John G. Roberts Jr. and at times with the four-justice liberal bloc. That is the same role played for more than two decades by Alito’s predecessor, Sandra Day O’Connor, who was famously depicted on the cover of the New York Times magazine as the most powerful woman in American government.
      Alito wields power not by swinging from side to side but by standing fast. He flexed power from his first months on the court, when he cast the deciding votes in three cases that had to be re-argued after O’Connor’s departure. With the other justices divided 4-4, Alito in effect became the one-man court in rulings in 2006 that weakened the “knock and announce” requirement for police, limited free-speech protections for public employees, and upheld Kansas’s death penalty statute.
      As the junior justice until Sonia Sotomayor’s appointment in 2010, Alito voted last in the justices’ private conferences, where cases are actually decided and opinions assigned. In that role, Alito literally cast the deciding votes in 5-4 rulings in the momentous 2006-2007 term that upheld a federal ban on a specific abortion procedure, weakened the McCain-Feingold campaign finance law, limited school districts’ ability to promote racial diversity, and restricted taxpayer suits against government subsidies to religious groups. He was also the tie-breaker in the well-known Lily Ledbetter case, which made it harder to bring pay discrimination suits in federal courts until Congress reversed the ruling by statute.
      All of those rulings went against the grain of what had seemed to be established precedent or dominant positions in lower courts. As in the prison crowding case, however, Alito is willing to find his own facts or make his own law. Writing for a 5-4 majority in an Arizona case challenging bilingual education in 2009, Alito found “documented, academic support” for the view that structured English immersion is the better educational technique, but failed to mention the dominant view among experts favoring dual-language instruction. In another 5-4 decision a year earlier striking down a minor part of the McCain-Feingold law, Alito relied in part on a lower court decision striking down a public campaign financing scheme without acknowledging that most federal court decisions have upheld such laws.
      Alito wears his conservatism on his sleeve both on and off the court. He has been speaker or guest at fundraisers for conservative organizations, such as the Manhattan Institute and American Spectator, the conservative weekly. When questioned at the American Spectator event in November 2010, Alito told a reporter for the left-wing blog ThinkProgress that his attendance was “not important.”
      On the bench, Alito poses hard-edged questions like those in the prison crowding case, almost always reflecting a conservative bent. Jan Crawford, CBS’s conservative-leaning Supreme Court correspondent, praised him in October as the court’s “most insightful and strategic questioner.” Less star-struck, First One @ One First blogger Mike Sacks described Alito in December as the conservatives’ “enforcer.”
      When Alito took the bench in January 2006, Martin Lederman, then a professor at Georgetown University Law Center, identified more than 30 Supreme Court rulings where his predecessor, O’Connor, had cast pivotal votes. In a beginning-of-term preview last fall, Lederman, back at Georgetown after serving in the Justice Department, listed some of the areas where Alito’s vote has already made a difference in bending or breaking past Supreme Court rulings. In apparently good health at age 60, Alito presumably has at least another decade to work with the conservative bloc to change some of the others.


  1. Wow, I'm guessing you don't like him very much.
    I'm sure the world would be so much better if we just let all these prisoners out on the steet.

  2. I'm just an amateur here, but giving deference to the lower court's fact findings doesn't mean that the court has to accept whatever the lower court finds if it is clearly erroneous. Also, couldn't the possible effect of prisoner release on public safety be considered a legislative fact that is not owed deference by the reviewing court(as opposed to a material fact that is)?

  3. Mr. Jost's critique seems to reduce itself to the fact that (Surprise of surprises!)Justice Alito is not Justice O'Connor. Casting Justice Alito as the former literal "tie-breaker" as juniormost Justice in a number of important cases--primarily as a consequence of his voting last, as is the court's custom for whoever happens to be the juniormost Justice--does not disguise the fact that the actual tie-breaking votes in many of the cases mentioned have been cast by Justice Kennedy. In the past (i.e. pre-Alito) the same role was played by O'Connor even though she wasn't necessarily voting last. I assume that Mr. Jost would have little problem with her playing tie-breaker, however we define it.

    In addition, even if one were to accept Mr. Jost's reduction of differing judicial philosophies to "ideological" commitments (which I do not), he provides no evidence for the proposition that Justice Alito is more "ideologically pure" than Justices Scalia or Thomas, nor does he define what he means by the term. To the contrary, it would seem that Justice Alito's often-expressed willingness to consult legislative history (unlike Scalia), as well as his greater reluctance to overturn precedents (unlike both Scalia and Thomas)makes him less judicially adventurous. For example, he joined Roberts and Kennedy in the taxpayer suit case (which Mr. Jost mentions in passing, but which opinions he conveniently discusses not at all) in voting not to overturn Flast v. Cohen, unlike Scalia and Thomas.

    His comment on Jan Crawford's "star gazing" is little more than snarkiness disguised as commentary.

    But what do facts and arguments matter when one has an axe to grind, as Mr. Jost clearly does?