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. (By Lawrence Jackson -- Associated Press)

Such criticism may not be entirely unwelcome, as Alito and Roberts are being criticized from the left for not living up to their pledges to honor stare decisis -- the idea that previous rulings of the court should usually stand.

Although the court has not explicitly overturned specific precedents, Alito has been part of the majority that has implemented an unmistakable shift in the court's holdings.

If a conservative majority rules against the school programs in Seattle and Louisville, Alito "will have been responsible for overturning three of [O'Connor's] recent landmark decisions," said Georgetown University law professor Martin S. Lederman. He was referring to her role as the fifth vote to strike down a state's prohibition of certain abortion procedures, to find the campaign finance law constitutional and to approve the use of race in admission decisions to the University of Michigan's law school.

Because the views of Justice Anthony M. Kennedy, the court's swing vote, were already known in those cases, and because Roberts's votes are no different from those of the man he replaced, the late William H. Rehnquist, it is Alito's support that has changed the minority view to the majority opinion.

Lederman has found 31 decisions from 1995 to 2005 in which O'Connor was in the 5 to 4 majority and in which there is a significant chance Alito would vote differently.

Because of the increase in split decisions this year, about double the number from last term, Englert said that Alito's influence may be misinterpreted.

"There is a tendency to take every 5-4 decision and say, 'Oh, this would have been different if Justice O'Connor were still on the court,' " he said. "Sometimes that's true, and sometimes it isn't true."

On the bench, Alito, 57, is a frequent and precise questioner, although not nearly as loquacious as Roberts and Scalia on the right or Justice Stephen G. Breyer on the left. He is soft-spoken and sometimes comes across as even shy. But the former prosecutor accepts a large number of the speaking requests he receives, often lecturing at universities and appearing before lawyers and other groups.

He has a somewhat deadpan delivery -- he told the National Italian American Foundation in a recent speech that reporters sometimes don't catch his jokes. He said he should perhaps signal such statements with the text-messaging shorthand he has learned from his daughter, a student at Georgetown University.

"JK, JK," he said, which means "just kidding, just kidding."

The first major decision that Alito wrote this term -- a ruling that a lawsuit alleging pay discrimination had been filed too late under terms of Title VII of the Civil Rights Act of 1964 -- has also been one of the court's most controversial.

Justice Ruth Bader Ginsburg called it a "parsimonious" reading of the law and called on Congress to act. The proposed Lilly Ledbetter Fair Pay Act, named after the plaintiff in the case, was scheduled to be marked up in a House committee yesterday.

Before the Italian American group, Alito accepted praise from a questioner for the decision but quickly noted that not everyone agreed with it. Since he was interpreting the law that Congress passed, Alito said, "it's certainly Congress's prerogative" to change it.