Tag Archives: alito

Alito, Kennedy, Gays

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Here’s an interesting post touching on Alito, gay rights, and Kennedy becoming the new swing justice. See the comments as well. Of course, Kennedy’s becoming the swing vote merely means that the Court will move to the right, not that Kennedy will move to the left, but Balkin notes that Kennedy “supports gay rights claims a bit more than O’Connor.” One of the commenters notes that in Lawrence, O’Connor’s concurrence was limited to the issue of equal protection, whereas Kennedy’s majority opinion was broader, focusing on due process and liberty while also incorporating O’Connor’s equal protection argument.

Another commenter thinks that Chief Justice Roberts might be a swing vote on gay rights.

Finally, here’s a piece on Alito and a couple of gay harrassment cases.

Philip A.

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I think Judge Alito’s cute son, Philip, is a recent transfer student to UVA. If my Googling/detective skills are working properly, he’s transferred to UVA this year from Colgate, and he lives in a dorm right near the dorm I lived in for two years, Long. He probably hangs out in the Brown College quad like I used to do. Weird.

Alito in Doe v. Groody

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I decided I would look at Alito with an open mind. Well, I’ve just a read a Third Circuit case from just last year, Doe v. Groody, in which Alito wrote the dissenting opinion, and his dissent bothers me.

The case was about four police officers who had a warrant to search a suspect and his house for drugs. The affidavit they used to apply for the warrant requested permission to search “all occupants of the residence” for drugs, but the warrant signed by the magistrate granted permission only to search the suspect and nobody else. When the officers went to the house with the warrant, they found the suspect, his wife, and their ten-year-old daughter. A female officer brought the wife and daughter to an upstairs bathroom:

They were instructed to empty their pockets and lift their shirts. The female officer patted their pockets. She then told Jane and Mary Doe to drop their pants and turn around. No contraband was found.

The Does later filed a complaint against the officers, alleging that the officers illegally strip-searched the wife and daughter.

The judges voted 2-1 against the officers, concluding:

Searching Jane and Mary Doe for evidence beyond the scope of the warrant and without probable cause violated their clearly established Fourth Amendment rights.

Alito dissented. He listed several reasons why the officers could have reasonably concluded that they were allowed to strip-search the wife and daughter, against the face of the warrant.

Here’s what really bothers me. After listing his reasons, he writes:

I believe that the majority’s analysis is flawed. First and most important, the majority employs a technical and legalistic method of interpretation that is the antithesis of the “commonsense and realistic” approach that is appropriate.

“Technical and legalistic”? Shouldn’t those be the guiding principles of judicial restraint? Aren’t “commonsense and realistic” another way of saying that a judge should use his discretion, i.e. be a judicial activist? Isn’t judicial activism supposed to be really really bad? So much for principles.

Alito spent three years as U.S. Attorney for the District of New Jersey and four years as an assistant U.S. attorney. If this case is any indication, I guess we know where he stands on criminal law.

Oh, you know one of the more interesting parts of this case? The majority opinion – from which Alito dissented – was written by none other than Michael Chertoff, formerly a Third Circuit judge and now U.S. Secretary of Homeland Security.

Thoughts on Alito

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Get used to saying “Scalia, Alito” rapidly, as in, “Roberts, Scalia, Alito, Thomas,” who will be voting closely together in lots of cases.

Fortunately, there are still five pretty solid votes on the Court for the area I care most about, gay rights – Stevens, Kennedy (who wrote Lawrence and Romer), Souter, Ginsburg, and Breyer. Now that O’Connor’s presumably gone, I think Kennedy’s going to become the new swing vote. Also interesting and still semi-applicable: this SCOTUSblog article from June about a possible “gang of three” – just replace “Rehnquist” with “Alito” in the following excerpt:

On a Court somewhat more conservative without O’Connor, Kennedy’s influence seems sure to grow. He has a chance to become the new balance wheel, a role that was filled so routinely by O’Connor. (Even if there were to form a solid Rehnquist-Scalia-Thomas-Roberts phalanx, they would still need Kennedy to prevail, and he would not be with such a quartet automatically.) Kennedy also has more influence than is sometimes credited to him. He has a store of common sense that saves him from ideological rigidity, and that steers him away from agenda-driven voting. He has an even deeper sense of what history asks of the few who become members of the Court. Those are summonses to the use of sound judgment.

As I’ve said recently, despite my relatively liberal social views, my judicial views have been in flux lately. Alito seems not be an ideologue or an asshole like Scalia, which is good. I prefer him to someone like Janice Rogers Brown or Priscilla Owen. (And hey – go, New Jersey, with two out of nine seats!)

The Harriet Miers nomination was bad for the Court as an institution. The Alito nomination is good for the Court, regardless of how good or bad it turns out to be for the country.

Alito?

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Both SCOTUSBlog and Confirm Them predict that the new Supreme Court nominee will be Samuel Alito of the Third Circuit, a judge whose chambers are in Newark, New Jersey – and not too far from my office! And I worked in his building one summer during law school when I interned with a federal district judge in Newark. Alito is nicknamed “Scalito” because his views apparently resemble those of Scalia, but apparently he’s not an ass like Scalia is.

Article III Groupie thinks it could be Luttig. She thinks Alito could wind up as the Edith Clement of this round to John Roberts’s Luttig. We’ll see.

I was thinking it might be McConnell, but apparently he’s not under consideration because conservatives might not be totally comfortble with him on Roe and other issues.

This could be announced Monday.