Batting About .500 on Review

Sometimes High Court Agreed With Alito, Sometimes Not

The nominee greets Arlen Specter (R-Pa.), left, whose Senate Judiciary Committee opens hearings on him Jan. 9. (By Jonathan Ernst -- Reuters)

Judge Samuel A. Alito Jr. wrote the opinion for the U.S. Court of Appeals for the 3rd Circuit that upheld Ronald Rompilla's death sentence.

Rompilla had murdered the owner of the Cozy Corner Cafe in 1988, stabbing him inside the bar in Allentown, Pa., before setting him on fire. Years later from prison, Rompilla contested his sentence, arguing that his attorneys had failed him by not obtaining medical and school records -- showing he was mentally retarded, an alcoholic and a victim of childhood neglect -- that may have persuaded the jury to spare his life.

A lower-court judge ruled that Rompilla must be resentenced or be released from prison. But in a 2004 opinion, Alito concluded that the lawyers, both public defenders, had done enough for their client by interviewing several of his relatives, who did not mention his troubles. The Constitution, he wrote, did not require every defense lawyer "to take all the steps that might have been pursued by the most resourceful defense attorney with bountiful investigative support." Alito added that while "we may hope for the day when every criminal defendant receives that level of representation, that is more than the Sixth Amendment demands."

Last June, the Supreme Court decided the 3rd Circuit had been wrong. And Sandra Day O'Connor, the justice Alito has been nominated to succeed, wrote a concurring opinion, disclosing that she had provided the crucial fifth vote in the court's 5 to 4 decision.

Rompilla v. Horn represents one of four instances found in a Washington Post analysis in which the Supreme Court came down on the opposite side from Alito. In three cases, the high court agreed with his position. One case is pending.

"They are no more likely to agree than to disagree with him," Donald R. Songer, a political scientist at the University of South Carolina, said of how closely Alito's views align with those of the court he will join if confirmed. At times, the justices have been more sympathetic to a plaintiff than Alito; at other times, less so.

Notably, the three times the Supreme Court shared his view, Alito had written an opinion dissenting from the majority on his own court. In a workers' rights case, for instance, the high court unanimously sided with Alito's position that public employees are not entitled to advance notice or a hearing before they are suspended without pay. And on a 7 to 2 vote, the court agreed with Alito that a defendant who crosses state lines while committing a crime may be prosecuted on a gun charge in either state, not just where the weapon was used.

The court also adopted Alito's position in a lawsuit that tried to block the closing of the Philadelphia Naval Shipyard, agreeing that the federal courts do not have the authority to step into the U.S. government's process for closing military bases. The lawsuit to keep the shipyard open was filed and partly argued, in an unusual act for a sitting senator, by Arlen Specter (R-Pa.), now the chairman of the Senate Judiciary Committee and the man who will preside over Alito's confirmation hearings.

The court's best-known disagreement with Alito occurred on a significant abortion case, Planned Parenthood of Southeastern Pennsylvania v. Casey . At the 3rd Circuit, Alito had written a dissenting opinion in which he concluded that part of Pennsylvania's abortion restrictions, requiring women who seek the procedure to notify their husbands, was not too burdensome. The high court ruled that it was.

In a lesser-known case, the court overturned a 3rd Circuit decision -- with Alito in the majority -- in favor of an inmate who argued that he had received an excessive sentence because of an earlier conviction in a case in which he said his lawyers had been inadequate. The court also reversed an opinion, written by Alito, in which the 3rd Circuit had ruled in favor of a woman with heart disease who wanted to collect Social Security disability payments after her job as an elevator operator was eliminated.