News Intelligence Analysis
A Conservative On Alito
By: Dales
· Section: SCOTUS
Nov 2nd, 2005:
When trying to discern what sort of Supreme Court Justice a nominee might make, I put particular stock in their writings outside of the realm of court opinions and legal briefs. A lower court Justice is bound to follow the precedents of the Supreme Court; how a particular Justice performs this task may or may not demonstrate how the Justice would steer the Supreme Court on a particular matter. An attorney arguing a case will adopt the arguments that advance the cause of their client; this tells one nothing about if the advocate would find the arguments compelling if seated on the Court. Other writings offer a better glimpse at the true perspectives of the author. With this in mind, I reviewed The Released Time Cases Revisited: A Study of Group Decisionmaking by the Supreme Court", a 1974 article by current Supreme Court nominee Samuel A. Alito, Jr. The article provides some welcome clues as to the type of decision Alito finds problematic, as well as hints to the limitations he would put on considering the precedents from previous Supreme Court rulings.
In order to facilitate an analysis of what the article suggests about Alito, one must be familiar with the subject matter at hand. The foundation of the article is three Supreme Court decisions; Everson v. Board of Education, where the Supreme Court "made the Establishment Clause of the First Amendment applicable to the states through the Fourteenth Amendment," McCollum v. Board of Education, where the Court found unconstitutional a "released time plan, under which students who wished to participate were excused from their secular classes for one period each week in order to attend religious classes held in the public school buildings and taught by teachers employed by various community religious bodies," and Zorach v. Clauson, where a similar plan "which differed from the plan found objectionable in McCollum chiefly in that the religious classes were not held on public school property" was found constitutional.
Alito describes his purpose in the article thusly (with footnote references omitted for brevity):
During the twenty years since McCollum and Zorach were decided, the opinions in those cases have been subjected to intensive study by a host of commentators using the traditional methods of case analysis. This Note will take a different approach. It will not focus on written opinions in the two released time cases, and it will not employ the traditional methods of case analysis. Instead it will explore the way the Justices function as a group in deciding a case by examining the efforts of members of the Court to persuade their colleagues to change their votes or their written opinions. It will also explore the effect which the interactions among the Justices can have on the outcome of a case, on the way the case is interpreted by lower courts and commentators-- and thus on the development of constitutional law.
Alito does not mention it here, but the way a case is interpreted is not limited to lower courts and commentators; future compositions of the Supreme Court also rely on these interpretations. It is for this reason that Alito's conclusions in the article are of particular importance.
He continues:
There are at least three reasons for a reexamination of the released time cases from this perspective. First, it may lead to a better understanding of McCollum and Zorach, each of which is a fundamental part of the foundation of Establishment Clause precedent, especially in the crucial area of education. Second, a study of the interactions among the Justices in McCollum and Zorach may reveal some of the competing pressures characteristic of Establishment Clause cases. Members of the Court have observed that a Justice's "prepossessions" or value judgments may be of great significance in this area. And many commentators have suggested that public opinion may be very influential. Third, to paraphrase Justice Jackson's famous and cryptic comment in Zorach, a study of the interactions among the Justices during the process of deciding these cases may be as interesting for what it reveals about the way the Supreme Court functions as for what it reveals about constitutional law.
Alito spends the next dozen or so pages detailing the haggling that occurred between the various members of the Court in the process of handing down the decisions in McCollum and Zorach. Those looking for clues as to if which side he would have come down on himself had he been on the Court will be left disappointed, as he never tips his hand in this regard. However, the article does not avoid being critical.
In those cases, like McCollum, where the ambiguity in the final opinions results from the Court's failure to decide certain questions, even the most exacting textual exegesis cannot penetrate the ambiguity.
The way things unfurled validates the characterization of this as problematic, as Alito notes:
McCollum unleashed a deluge of legal commentary and a welter of conflicting and often badly mistaken interpretations...
...Interestingly, there was one simple and plausible interpretation which no commentator advanced: That in the course of their deliberations the Justices had never identified precisely which factors rendered the Champaign plan unconstitutional...
The opinions in Zorach show that the members of the Court were as confused, or at any rate as sharply divided, as the commentators with regard to just what the Court had decided in McCollum.
From this criticism, one can infer that a Justice Alito will be moved to try to ensure that the implications of a decision beyond the case at hand are considered. Alito was able to analyze what was going on within the Court here only because he had access to the previously private papers of Justice Harold H. Burton. Lower courts and future Supreme Courts generally have only the written opinions to go on, and as Alito notes, when the rulings are ambiguous because the implications have not been decided, even the most careful reading cannot compensate.
This provides one clue as to how Alito will comport himself on the Court. His conclusions provide others.
It is certainly not possible on the basis of an analysis of the released time cases alone to formulate a list of rules which will prevent a reader of Supreme Court opinions from being misled as a result of the interactions of the Justices. In all likelihood such a list could never be compiled...
This is a key statement. In it, Alito is stating that one can be misled by Supreme Court opinions. While in the context of the article he is speaking of legal commentators and of lower courts, they are not the only readers of opinions. Supreme Court Justices themselves rely on previous opinions when considering precedent.
... But the analysis of the released time cases does suggest several approaches that may be helpful. First, the reader should be very hesitant about attempting to discern the Justices' motivations from the written opinions. A long list of outwardly plausible but badly mistaken interpretations resulted from attempts to discern the motivations and intentions of the Justices in the released time cases and illustrates this point...
There is another clue to the approach Alito will likely take. It seems reasonable to conclude from this paragraph that he will be skeptical of attempts to divine from the written opinions what earlier Justices really wanted to accomplish.
Second, the reader should learn to detect certain unmistakable signs in the written opinions that the Justices bargained or negotiated extensively... The reader who detects signs of extensive bargaining should remember that the written opinion may not represent the actual opinion of any of the Justices who signed it...
It is reasonable to conclude that he believes that a precedent is stronger when such signs are absent-- there is confidence that the signing Justices actually held the precise opinion proffered. Remember, he is listing here the ways for readers of opinions to avoid being misled by them. It follows that if there are unmistakable signs of bargaining or negotiation, that the chance of misinterpretation increases, and as such the confidence in the interpretation decreases. This hints that a Justice Alito may be less inclined to accept at face value the precedents afforded by opinions of this nature. If so, the opinions written by noted swing Justice Sandra Day O'Connor in closely decided cases may be particularly impacted.
And that brings us back to a line I quoted earlier:
Finally, the reader should remember that sometimes the members of the Court may decide a case without reducing their rationale to precise terms... In those cases, like McCollum, where the ambiguity in the final opinions results from the Court's failure to decide certain questions, even the most exacting textual exegesis cannot penetrate the ambiguity.
In other words, if a precedent setting opinion is ambiguous, then do not look for Alito to try to use that opinion as a basis for deciding the precise terms that led to the ambiguity.
What type of Justice will Samuel A. Alito, Jr. be? This article suggests he will be one who pushes for the implications of decisions beyond the case at hand to be considered. It suggests he will be one who understands that a lot goes on behind the scenes that can make drawing broad conclusions from opinions a risky endeavor. It suggests he will be skeptical of precedents based on bargaining. It suggests he will try to avoid issuing such opinions himself. It does all this in the context of analyzing Establishment Clause cases, without once detailing his views on what is, is not, should, or should not be considered constitutional in this regard.
It suggests he will be a very different Justice than the one he is nominated to replace; perhaps as different as could be.
Comments on the Article
Thanks for the analysis By: Just Me
The more I read of Alito, the more confident I am that he is
a great choice.
He seems like he is definitely anchored to the constitution,
and isn't impressed by judicial overreaching.
The article you quote also seems to provide a pretty good clue as to how Alito thinks and how he understands the court to work.
Well done n/t By: horaceox
Interesting analysis By:
owenz
I guess the only flaw I see in relying on Alito's note is that
it is so old. The Court in 1974 was a far more united than the
fractured Court we have now.
Chief Justice Rehnquist leaps to mind in this discussion because
in certain areas he, as much as O'Connor, issued opinions based
on thin compromises. In Lopez and Morrison, for instance, the
Chief Justice shifted commerce clause jurisprudence ever so slightly...nudging
50 years of precedent rightwards without establishing anything
close to a brightline rule. These were both the kind of thin,
compromise-based opinions that Alito seems to target in his note.
Yet in a deeply divided Court, incremental compromise was the
only way for Rehnquist to push his position.
Assuming Alito is confirmed, Justice Kennedy will take O'Connor's place as the swing vote. Conservative and liberal justices alike will need to appeal to Kennedy's wants and preferences. Go for the jugular, and see Kennedy vote against you. Go for the incremental, compromise-based opinions, and see Justice Kennedy give you his vote. Thus, the court's deepest idealogues - Ginsberg on the left and Thomas on the right - will rarely get to issue an opinion. Their views will usually be too extreme for Kennedy, who will only join in opinions intended to compromise (Ginsburg and Thomas will still vent in concurrences and dissents, of course). Note that this means that even if Justice Kennedy doesn't write the opinion, his fingerprints are likely to be all over it, as the writer struggles to craft an opinion that garners Kennedy's vote.
What's my point? Only this: in a deeply divided court, majority opinions will often be thin, incremental, and compromise-driven by necessity. Even if Justice Alito doesn't like it, he'll have to play the game if he wants his voice heard. The alternative involves standing on the sidelines with Ginsburg and Thomas hurling dissents and concurrences without truly shaping the law.
Alito article By: Steve Z
Actually, the fact that this article is from 1974 makes Alito
sound even more impressive--this is the writing of a 24-year-old
law STUDENT--he graduated in 1975!
I agree with Owenz that Alito's keenly developed sense of logic
and reasoning might be able to win Justice Kennedy's vote on
crucial cases. He might have the "soft touch" needed
to persuade Kennedy whereas a justice such as Luttig might be
too abrasive for Kennedy's tastes.
Re: It's old By: Dales
I cannot argue against the fact that the article is old. However,
what he was describing here was not views on any particular issue,
but rather the process involved in determining precedent. I do
not think the techniques he was discussing are time-sensitive.
Well... By: owenz
I think his writing style is mature for a 24-year old and he
certainly takes a novel approach to writing a case note, but
his premise - that weakly-worded, compromise-based opinions are
weaker precedent than strongly-worded, consensus-based opinions
- is not exactly a shocker. Of course brightline opinions that
are supported by strong majorities make for stronger precedent!
Fascinating stuff By: Crank
The writing style's not as advanced as his judicial opinions,
but that's to be expected at that stage of his career; it's still
better than . . . OK, I won't go there.
Don't read too much into what Alito wrote 30 years ago. Still,
I suspect that this does at least hint that Alito, like many
commentators, has long been frustrated at the incoherence of
the Court's Establishment Clause jurisprudence. Hopefully, the
addition of Alito and Roberts, replacing the inconsistent O'Connor
and the sometimes high-handed Rehnquist, will lead to unified
majority opinions with crisper reasoning.
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
Alito's liberal law clerk has an opinion By: The Populist
Judge Alito was known to hire liberals law clerks as well. Here
is an opinion by one of them which I found on scotugblog, note
how she compares Alito's philosophy to that of Sandra Day O'Connor's.
October 31, 2005
One liberal's positive view of Alito
"Katherine (Kate) Pringle is a partner in a New York law firm. She is also a progressive Democrat who was heavily involved in John Kerry's presidential campaign. And after she graduated from law school in 1993, she spent a year working as a law clerk to Third Circuit Judge Samuel Alito, Jr.
In light of this morning's nomination of Alito to the Supreme Court, I called Pringle to get her take. The short answer: she is very pleased with the nomination. More below.
I asked Pringle to describe what kind of judge Alito is. She said that Alito is "very thoughtful, very careful, very respectful of Supreme Court precedent. He has a strong conservative intellectual approach to things, but he is respectful, honest, and straightforward." She emphasized that Alito is very respectful of the litigants in the case before the court, and also of the opinions of his colleagues - he always looks for common ground and for opportunities to build consensus. She added that he is "not out there to accomplish a specific agenda," and noted his respect for "the Supreme Court as an institution." Incidentally, Alito's "respect for litigants" was echoed in this NPR story that interviewed Clark Lombardi, also a former Alito clerk (I do not know whether Lombardi self-identifies as a liberal or a conservative). Lombardi emphasized that Alito was very aware of the "human side" of cases, and said that Alito never treated litigants as pawns in a grand ideological chess game.
I wondered what Pringle meant by a "strong conservative intellectual approach."
She elaborated: "he cares a lot about the words of the statute or constitutional provision or contract" involved in the case. "He starts first and foremost with the words." Pringle added that Alito is "not interested in being expansive with judicial opinions. He decides the specific issue in front of him, and is not inclined to go beyond that."
The "deciding specific issues" approach to judicial decisionmaking has been associated with the Justice that Alito would replace, Sandra Day O'Connor. O'Connor is known for writing very narrow opinions that resolve little more than the precise set of facts presented to the Court - and some have criticized her for that practice, preferring that Justices write expansive opinions laying down broad rules for future cases. I asked Pringle whether she thought Alito was in "the O'Connor mold" in this respect.
She thought that he was. She described Alito as "interested in focusing on the immediate case at hand. He is not someone who is eager to reach out and grab broad principles and institute them separate and apart from the case." I asked whether Alito might alter his case-by-case approach to judging on the Supreme Court. Pringle didn't think he would.
If you've heard any news stories about Judge Alito, you've heard that his supposed "nickname" (it remains unclear by whom it was bestowed) is "Scalito," the idea being that he's a "little Scalia." I asked Pringle if she thought this was fair to Alito.
"No," she said, "I never have." Pringle noted that Scalia and Alito are of course both of Italian ancestry, are both Catholic, and are both conservative, but she thinks there are more important differences between them including temperament, personal style, and the desire (or lack thereof) to find consensus. (See also this Time article on the "Scalito" comparison. My own view, FWIW, is that this "Scalito" business is simply due to two conservative judges having Italian surnames that happen to sound similar. It is therefore insulting and juvenile and should be dropped immediately - if two Jewish judges' names were subjected to similar wordplay, the "joke" would be widely condemned as anti-semitic.)
Moving into more dangerous territory, I asked Pringle whether she had any sense of how Alito would apply stare decisis (the doctrine counseling respect for precedent) on the Supreme Court.
Her view is that, because of Alito's tremendous respect for the Supreme Court as an institution, he is unlikely to overturn precedent lightly. Rather, he will grapple with existing precedent, even when he might have decided the original case differently, and will give considerable importance to the opinions and approaches of the Justices that came before him. She thought that overall Alito's approach would probably resemble that described by now-Chief Justice Roberts in Roberts' confirmation hearings. As to specifics, Pringle was not willing to hazard a guess as to whether, given the chance, Alito would vote to overrule hot-button cases like Roe v. Wade and Lawrence v. Texas. [Emphasis Added by Yurica Report]
Pringle, as I noted earlier, is a liberal Democrat. I wondered whether her ideological bent was an anomaly in Alito's chambers, or whether Alito routinely hired left-of-center law clerks.
She didn't know whether Alito intentionally hires law clerks with diverse viewpoints, but she did know that she was not alone - a good number of Alito's past law clerks are far more liberal than he is. She also emphasized that Alito was always asking his clerks for their viewpoints, and that he enjoyed the debate when different opinions emerged on particular cases (this, too, was echoed in the NPR interview with ex-clerk Lombardi).
Pringle's bottom line is a pragmatic one. Of course, Alito would not have been on John Kerry's or any other Democrat's short list for the Supreme Court. But, as we all know, John Kerry didn't win in 2004, nor did the Democrats capture a majority in the Senate. Given that reality, Pringle said,
"I'd rather have someone who has real intellectual ability, who has experience, who has a history of making these kinds of difficult decisions, and who has demonstrated respect for the Court as an institution, than a stealth candidate."
And given the other candidates on the "conservative short list," Pringle is optimistic about Alito. She says that he will treat every case fairly, and that "we'll be proud to have him on the Court.
See also his 1986/87 article By: PresidentAristotle
Why Alito's 1986/87 article likely means he'll reverse Roe:
http://presidentaristotle.blogspot.com/2005/11/scalito-and-founding-fathers
-why-he.html
The 1974 article is a near-masterpiece
By: PresidentAristotle
Exceptionally mature, wise, balanced. Hard to believe it was
written by a 24-year old.
Page1227fn144: the tell-tale use of the word "recognize"
suggests that Alito's summary of Douglas's views on the establishment
clause reflects also Alito's own.
This would seem to be confirmed by Alito's subsequent jurisprudence.
In this case, that's a good sign. :)
Alito Resources By: scalito
Interesting Article. I will post it on my site Scalito.info (the
libs already had the .com and .net!!) I would like to establish
Scalito.info as a base for all resources on Alito. Anyone interested,
please email me suggestions at scalito@scalito.info.
Scalito.Info
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