Alito, In and Out of the Mainstream

Judge Samuel A. Alito Jr. pauses in November while making introductory courtesy calls on senators who will be voting on his nomination to the Supreme Court. (By Melina Mara -- The Washington Post)

The analysis included 34 majority opinions and 55 dissenting ones that Alito wrote, plus 132 in which he voted but did not put his views in writing.

Overall, the opinions Alito wrote are largely devoid of impassioned rhetoric or broad philosophical assertions. He grounds his views in close readings of legal precedents, statutes and government regulations. Of the cases The Post examined, Alito upheld the rulings of a lower court about half the time, which is typical of appeals judges nationally.

Routinely, he defers to government officials and others in positions of authority. He sometimes chastises his fellow judges for what he regards as overstepping their authority by imposing their own judgments, rather than merely assessing the legality of actions by prison guards, defense lawyers and immigration officials being challenged -- actions he often upholds.

His written opinions often are "very thoughtful, well constructed and well argued," said Martin H. Redish, a constitutional scholar at Northwestern University School of Law in Chicago who reviewed several cases in the Post analysis. At the same time, he said, Alito is "clearly tough-minded . . . having very little sympathy for those asserting rights against the government."

As Alito's confirmation hearings approach, the debate over his nomination has escalated to a political brawl. At the core of the partisan fight is a pair of memos he wrote two decades ago, when he was a Justice Department lawyer in the Reagan administration. In them he made clear that he opposed Roe v. Wade , the 1973 Supreme Court ruling that legalized abortion nationwide.

There were two abortion cases in the analysis. Alito voted to restrict abortion rights in one -- the well-known Planned Parenthood of Southeastern Pennsylvania v. Casey , in which the Supreme Court later disagreed with him -- and voted to protect such rights in the other.

Alito's place in the nation's decades-old abortion wars, the analysis shows, is not what most defines him as a judge.

The Prosecutors' View

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In the summer of 1991, Kourtney Kauffman was released against his doctors' advice after a five-day stay at a psychiatric center in Harrisburg, Pa. Two days before he was hospitalized, five guns were stolen from a nearby house. Five days after he got out, Kauffman was arrested while trying to sell four of the weapons to a firearms dealer.

On his lawyer's advice, he pleaded guilty to illegally possessing the guns and received a 15-year sentence. A few years later, Kauffman sought to have his conviction overturned, arguing that his lawyer had not discussed the possibility of an insanity defense, even though a psychiatrist who had examined him the day he was arrested concluded he was "undoubtedly psychotic at the time."

A U.S. district judge turned Kauffman down, and he appealed. The two 3rd Circuit judges with whom Alito heard the case -- like him, appointed by President George H.W. Bush -- ordered a new trial for Kauffman. Although a court must be "highly deferential" to the decisions of a lawyer representing a criminal defendant, the majority ruled, Kauffman's counsel was inadequate because he had not investigated his client's history of mental illness or considered an insanity defense.

Alito disagreed. Because the lawyer had represented Kauffman in the past, Alito wrote in his dissent, he knew his client well enough to make a "tactical decision" that a guilty plea was the best course. The court majority, he wrote, "fails to heed that important admonition" that judges should be reluctant to second-guess lawyers' conduct.

U.S. v. Kauffman is typical of Alito's perspective on criminal cases. Of 33 such cases in the analysis, he sided with criminal defendants only three times, aligning with prosecutors more often than the average GOP-appointed judge in divided cases. His high rate of favoring the prosecution is nearly identical to that of the Supreme Court's new chief justice, John G. Roberts Jr., according to the University of Massachusetts's Manning, who performed a similar analysis of Roberts's record from his two years on a different federal appeals court.