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.