Since having been nominated to the U.S. Supreme Court, Republicans and members of right-wing interest groups have hailed Judge Samuel Alito as one of their own. They claim that as a Justice he would overturn Roe v. Wade, vote for states' rights against the federal government, protect corporations against individual plaintiffs, restrict the federal government to its essential functions, and limit the rights of criminal defendants. These assertions have stoked the flames of left-wing news media and advocacy groups. They have embraced the notion that Justice Alito would prove to be to the right of Justice Scalia, and therefore is unsuitable to take the place of the so-called "moderate," Justice O'Connor.
Both sides find support for their claims about Justice Alito's philosophy in his writings -- the hundreds of cases in which he has participated since joining the Third Circuit. Individual cases may support one claim or another; there may even be a line of cases that supports the left's exaggerated fears about Judge Alito's supposed judicial philosophy. He does have a judicial philosophy. However, it has little to do with that of Justice Scalia or Judge Bork.
First, Judge Alito reads statutes closely, and attempts to ascertain their meaning from their text. He will generally follow the language of a statute unless it is ambiguous or leads to an absurd result. Second, he reads the lower court record. His years as an appellate litigator have trained him to do that, and he has followed this practice faithfully during his time on the Third Circuit. He refuses to ascribe arguments to an advocate, or base his decisions on statements not made at trial. Third, he follows precedent Supreme Court decisions as well as those of the Third Circuit. In the last few decades the Supreme Court has frequently made that difficult for lower courts. And a few times Judge Alito, attempting to decipher the meaning of a precedent or predicting the outcome of a line of cases, has been reversed. In each of these cases, though, he made an honest effort to reach the legally correct result, independent of his personal beliefs.
How do we label this judicial philosophy? Conservative? Maybe. Boring? Perhaps. With Judge Alito you get what you see, a first-rate legal analyst who, despite claims to the contrary, has judged every case on its own, has struggled with the law and the facts, and has attempted to explain his rationale to his fellow judges, the litigants, and the public. His experience as a federal prosecutor has not led to automatic decisions for the government but rather to practically informed reasoned arguments that often take account of the pressures upon the men and women enforcing the law.
Take two cases in point. In the first, an Iranian woman claiming asylum argued that deporting her back to Iran would lead to her persecution for membership in a social group consisting of upper-class, Western educated Iranian women who consider wearing the Muslim headscarf contrary to their personal beliefs. In the second, the court was asked to decide a government forfeiture claim against a pharmacy from which the husband illegally dealt drugs but which he and his wife held as tenants by the entirety.
How did Judge Alito rule? In the first case, he wrote, quite reluctantly, a decision that denied the woman's asylum claim even though he interpreted the law broadly. He not only foreshadowed a later decision by the Board of Immigration Appeals which allowed for asylum in a gender-based case, but seemed to embrace the notion that gender alone could constitute a social group. The lower court record, which he parsed carefully, forced him to find against the asylum applicant though in the process he made good law for asylum-seekers. And I am sure that he was relieved to find out that the applicant found another avenue to stay in this country after the decision was issued.
In the second case Judge Alito was faced with a statute that provided no answer as to how to resolve the competing claims between the wife and the government. He granted the government the right to forfeit fifty percent of the property but left the wife with the other fifty percent and a lifelong right to full possession of the property. This was an attempt at a Solomonic decision which showed his respect for legislative intent as much as his practical side.
Both of these were unanimous rulings. While Judge Alito's dissents have been discussed ad nauseam in the last few days, little has been said about his judicial demeanor on the bench. He has been able to find common ground with all judges of the Third Circuit, independent of political affiliation. And apparently not one has uttered a negative word about Judge Alito. Perhaps they do not want to ruffle feathers, but more likely they've come to appreciate his personal behavior as much as his intellect. All of his dissents are deeply respectful, though obviously critical of the majority. He engages the majority in argument but without any name-calling or the type of sarcastic criticism that has dominated many Supreme Court dissents in recent years. He may bring some much needed affability and consensus building to the Supreme Court. But law students beware, his opinions and dissent may lack some of Justice Scalia's raciness.
Feminists and liberals, expect more line-drawing from Justice Alito, but sleep well tonight in the belief that he will not threaten our liberties or the foundations of our country, though he may force Congress to write its statutes more clearly.
Nora Demleitner is professor of law at Hofstra University School of Law. She clerked for for Judge Alito from 1992-1993.