Samuel Alito: With rare (but interesting) exception, the most reliably conservative member of today’s Court

July 17, 2013

Samuel Alito 2In the previous installment of this series, we covered Justice Sonia Sotomayor. 

The post concluded that she was an unpredictable liberal – in that she generally votes with the Court’s liberal bloc, but also surprises observers on occasion by going in a different direction.

This week, we’ll be covering a justice that is, in many ways, the conservative equivalent: Justice Samuel Alito.

As with our first two posts, we’ll be tackling the basics about the justice first.

Samuel Alito was born on April 1, 1950 in Trenton, New Jersey – the same city in which Justice Antonin Scalia was born.  Also like Scalia, Alito was born to Italian American parents.

Alito attended Princeton University, where he led a student conference entitled, “Boundaries of Privacy in American Society.”  The conference opposed domestic surveillance by the U.S. government and espoused a broad interpretation of the Constitution’s Bill of Rights.

Alito graduated from Princeton’s Woodrow Wilson School of Public and International Affairs with a Bachelor of Arts in 1972.  He began attending Yale Law School the same year, and earned his Juris Doctor from Yale in 1975.

After graduating from law school, Alito unsuccessfully interviewed with then-Supreme Court Justice Byron White for a clerkship.  In 1976 and 1977, Alito clerked for Third Circuit appeals judge Leonard I. Garth.

From 1977 to 1981, Alito was Assistant United States Attorney for the District of New Jersey.  From 1981 to 1985, Alito was Assistant to Solicitor General Rex E. Lee, during which time he argued 12 cases before the Supreme Court.  From 1985 to 1987, Alito was Deputy Assistant to Attorney General Edwin Meese.

On February 20, 1990, President George H.W. Bush nominated Alito to an open seat on the U.S. Court of Appeals for the Third Circuit; Alito was confirmed by unanimous consent in the Senate on April 27, 1990.

During his tenure in the Third Circuit, Alito authored some notable opinions.

Doe v. Groody, for example, may be one of his more infamous: in a dissent, Alito argued that police officers didn’t run afoul of the Constitution when they strip-searched a mother and her ten-year-old daughter.  Alito picked up the nickname “Strip-Search Sammy” from some of his critics because of this dissent.  This dissent is also indicative of Alito’s tendency to side with law enforcement most of the time.

In addition, Alito dissented in the Third Circuit’s ruling in Planned Parenthood v. Casey, supporting a Pennsylvania law requiring women to consult their husbands before having abortions.

On October 31, 2005, President George W. Bush nominated Alito to the U.S. Supreme Court after Harriet Miers, Bush’s previous nominee to fill Justice Sandra Day O’Connor’s vacancy, withdrew her acceptance of the nomination.

After a relatively difficult nomination that saw a failed filibuster attempt from Senator John Kerry and rare formal opposition to Alito’s nomination from the American Civil Liberties Union, the Senate confirmed Alito on January 31, 2006.

Nearly all observers were expecting Justice Alito to be a conservative Justice, and, thus far, he hasn’t disappointed: Alito has a very conservative voting record on the Supreme Court, with little exception.

Those exceptions, though, are noteworthy.

In 2008’s Gomez-Perez v. Potter, Alito wrote a majority opinion that was joined by the Court’s four liberals and Justice Kennedy.  Alito’s opinion, which espoused a broader view of civil rights laws, allowed to go forward retaliation claims resulting from the filing of an age discrimination complaint by a federal employee.

2012’s Elgin v. Department of Treasury found Alito taking a similar position, only this time in the dissent (joined by Justices Ginsburg and Kagan).  In Elgin’s dissent, Alito argued to allow the claim by several federal employees that the requirement that all federal employees enroll in the Selective Service System is unconstitutional.

Alito also joined with the liberal bloc in several other, albeit less notable cases, including 2007’s Metropolitan Life Ins. Co. v. Glenn, Zuni Public School District v. Department of Education, and Limtiaco v. Camacho, and 2013’s Wos v. E.M.A. ex rel. Johnson.

Nevertheless, Justice Alito is differentiated from his conservative colleagues on the Court not by the times when he breaks away and sides with the liberals; rather, he is distinguished by several notable concurrences and dissents.

For instance, in last year’s U.S. v. Jones, in which the Supreme Court unanimously held the use of a GPS tracking device by law enforcement without a warrant to violate the Fourth Amendment, Alito penned a separate concurrence that was joined by Justices Ginsburg, Breyer, and Kagan.  His concurrence backed a broader view of Fourth Amendment privacy rights than that advocated by Justice Scalia’s opinion.

Alito’s concurrence in Jones would seem to suggest that the justice still has the same libertarian streak that he did when he was in college.  This issue also seems to be a notable exception to Alito’s general predisposition to siding with law enforcement.

In another important concurrence, Alito, joined by Chief Justice Roberts, writes in 2011’s Brown v. Entertainment Merchants Association that, though he concurs in judgment that the law banning the sale of violent video games to minors was unconstitutionally vague, he disagrees that free speech protections ought to extend to violent video games.

This is not the only time that Alito has recognized limitations on First Amendment speech protections based on content.

In 2010’s U.S. v. Stevens, which struck down as unconstitutional a federal law that banned trafficking in “depictions of animal cruelty,” Alito was the sole dissenter.  His dissent drew parallels to 1982’s New York v. Ferber, which held that the First Amendment doesn’t forbid states from prohibiting depicts of child pornography (and, likewise, argued Alito, does the First Amendment prohibit bans on depictions of animal cruelty).

In another First Amendment case, 2011’s Snyder v. Phelps, Alito was once again the lone dissenter.  In Snyder, the majority upheld public protests of military funerals by the Westboro Baptist Church as constitutionally protected speech.

Alito’s dissent argued that the First Amendment doesn’t allow “for the vicious verbal assault that occurred in this case.”

It seems clear, then, that Alito is hesitant to allow patently offensive speech First Amendment protection.

Finally, Alito does not appear to be one of the Court’s most fervent advocates for copyright protection.

In Golan v. Holder, Alito joined Justice Breyer’s dissent from the majority’s opinion that upheld a law that removed “many millions” of works from the public domain.  Also, Alito joined the Court’s majority in siding against the copyright holder in Kirtsaeng v. John Wiley & Sons, Inc.

What’s worth noting, however, is that these deviations from his conservative associates are relatively rare – even more so than those of Justices Scalia and Thomas (as we’ll get in to in later posts).  Justice Alito is also a more reliable conservative than Chief Justice Roberts.

In other words, Justice Alito is the most reliably conservative member of the Supreme Court today.