Newest Justice Tips High Court to Right

Samuel Alito, right, has been likened to fellow conservative justice  Antonin Scalia, left, but in style Alito is closer to Chief Justice John Roberts.
Samuel Alito, right, has been likened to fellow conservative justice Antonin Scalia, left, but in style Alito is closer to Chief Justice John Roberts. (By Lawrence Jackson -- Associated Press)

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By Robert Barnes
Washington Post Staff Writer
Thursday, June 28, 2007

On a Supreme Court that has moved consistently to the right, no justice has been more important to the shift than the newest one: Samuel A. Alito Jr.

The solidly conservative Alito's replacement of the more moderate Sandra Day O'Connor has made the difference in two of this term's biggest decisions -- the vote in April to uphold the federal Partial Birth Abortion Ban Act and its ruling on Monday to substantially weaken the McCain-Feingold campaign finance act.

And Alito's vote will be key today if the court announces what could be a landmark decision about whether public school districts may consider an individual student's race when making assignments to achieve diverse school populations.

"There's no question that Justice Alito is more conservative than Justice O'Connor; there's no question that his replacement of Justice O'Connor moves the court to the right," Washington lawyer Roy T. Englert, a frequent Supreme Court practitioner, said yesterday during a forum at the Washington Legal Foundation.

"The president accomplished what he wanted to do when he appointed Justice Alito to the court."

But if Alito's consistency has provided the outcomes his advocates hoped for and his detractors feared, his low-key style has not exactly been what was predicted in his bruising confirmation battles.

The appeals court judge from New Jersey was tagged with the demeaning nickname "Scalito," a reference to the belief he would be an acolyte of Justice Antonin Scalia. The genial Chief Justice John G. Roberts Jr., thought by some Democrats to be more moderate, sailed through his confirmation hearings and received 78 votes in the Senate; only four months later, 20 fewer senators supported Alito.

But in Alito's first full year on the court -- not always the most accurate predictor of a justice's future -- he and Roberts have been virtually interchangeable. The two have been in full agreement in nearly 90 percent of the court's cases this year, according to statistics produced by the Washington law firm Akin Gump Strauss Hauer & Feld.

Alito's votes have provided for "a completely uniform step to the right" for the court, said Akin Gump's Thomas C. Goldstein. But he added that there is a "big difference" in style between Alito and Roberts and their brethren on the right, Scalia and Clarence Thomas.

"Justice Alito, I think, is a very measured conservative, not in the mold of someone who wants to dramatically rewrite doctrine in the manner that Justice Thomas and Justice Scalia are very comfortable and enthusiastic about."

Alito and Roberts supported each other this week in 5 to 4 decisions that stopped short of what the other conservatives wanted. In the campaign finance decision, which divides the court -- if not the public -- along ideological grounds, Scalia criticized Alito for saying he would wait to see whether a test proposed by Roberts to protect speech rights worked before considering whether the entire provision was unconstitutional, as Scalia believed.

"The wait-and-see approach makes no sense," Scalia wrote. "How will we know that would-be speakers have been chilled and have not spoken? If a tree does not fall in the forest, can we hear the sound it would have made had it fallen?"


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