Judge Alito Dissenting

Saturday, January 7, 2006

YOU CAN LEARN a lot about a judge by the circumstances in which he cannot agree with his colleagues. Consequently, the many dissents of Judge Samuel A. Alito Jr. offer an unusual window into his judicial personality. In political terms, a preponderance of them are ideologically predictable -- that is, there are many cases in which Judge Alito takes an approach that would yield results more conservative than those reached by his colleagues and few in which he dissents from the left. In legal terms, his work is careful and measured, and while we disagree with his analysis in some cases, in others it seems admirable. Yet this body of work, from the past decade, is most interesting not in the details of any particular opinion but in its illumination of the jurisprudential themes a Justice Alito would likely bring to the Supreme Court.

The most striking of these is the unusual deference he tends to show both to executive branch agencies at the state and federal levels and to the lower federal courts in their role as the judiciary's fact-finders. Conservative judges often preach about deference to political actors as a feature of judicial restraint, but the principle just as often gets honored in the breach. Judge Alito seems to take it seriously. His dissented, for example, show him less apt than his colleagues to second-guess immigration judges in adjudicating asylum cases, local zoning officials in imposing conditions on the conversion of a nightclub to a Buddhist temple, and prison officials in restricting high-security inmates' access to newspapers and magazines. This deference does not always serve Judge Alito's conservative political views -- though it often does. In one case, he dissented from a decision to overturn a district court's order that the government must help a convict avoid deportation; the district court's decision to believe the defendant's testimony that prosecutors had agreed to do this warranted respect, in his judgment. In general, his commitment to keeping appellate courts in their place seems sincere and apolitically applied.

In some ways, this sensibility is something the Supreme Court needs more of. The court is sometimes too willing to jump into political controversies, and justices of all political stripes have a tendency to fudge or ignore facts in the record that are unhelpful to them. Still, deference carried too far is a kind of abdication of the judicial function as a meaningful check on the political branches, and Judge Alito sometimes goes too far. In one asylum case, for example, the court overturned a decision by immigration authorities to deny haven to a Chinese defector who faced certain prosecution if returned; Alito would have deferred to their absurd judgment. Particularly at a time of executive branch overreaching in the war on terrorism, one has to be somewhat concerned about a judge whose tendency to stay his hand is quite as pronounced as Judge Alito's.

His tendency toward excessive deference is particularly pronounced in criminal cases, where it blurs with another of his major jurisprudential themes: his tendency to read criminal procedure rights narrowly. In his dissents, Judge Alito shows a greater tolerance than do his colleagues for aggressive police tactics, for vagueness in jury instructions, for incompetent defense lawyering, and for letting convictions stand despite alleged racial manipulations of juries. He seems likely to move the court to the right in this arena.

Yet Judge Alito's dissents are not the work of an unblinking ideologue. He dissented, for example, on behalf of a race discrimination claimant concerning the length of a statute of limitations and on behalf of a claim of federal jurisdiction under a consumer protection law. He dissented on behalf of the plaintiff in a medical malpractice lawsuit in which the defendant doctors argued that the victim of their error, who died as a result of their advice, was foolish to follow it -- a moving rebuke to colleagues who overturned a jury verdict in her favor.

Judge Alito's dissents offer much with which we disagree. But they are the work of a serious and scholarly judge whose arguments deserve respect -- a respect evident among his colleagues even when their positions differ.

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