Thursday, June 12, 2008

Not Exactly "Scalito"

Justice Samuel Alito was dubbed "Scalito" because he was viewed as an ideological and jurisprudential (in addition to ethnic) soulmate of Justice Antonin Scalia. During his confirmation hearing, liberals dreaded and conservatives dreamed that it might be true. As it turns out, in his first three terms on the Court, Alito has not exactly been a Scalia clone. That is not to say that he has been a disappointment to conservatives. He certainly is not "W's" Souter. And he has hardly established himself as a member of the Court's liberal wing.

But, there are some tell-tale patterns emerging that have already shown Alito to be quite distinct from Scalia. Just this current term, soon coming to an end, Alito has clearly shown himself to be much less hostile to discrimination claims than Scalia typically is, and much less narrowly focused on some real or divined specific original intent.

In Gomez-Perez v. Potter, Federal Express v. Holowecki, CBOCS West Inc. v. Humphries, Dept. of Revenue of Ky. v. Davis, and Snyder v. Louisiana, Alito voted to sustain the various claims based on discrimination. In every one, Scalia voted the opposite. The claims involved race in CBOCS and Snyder, age in Gomez-Perez and Federal Express, and home-state preference in Dept. of Revenue. They arose in the context of employment in CBOCS, Gomez-Perez and Federal Express; in jury selection in a capital murder prosecution in Snyder; and in a state tax scheme treating out-of-state bonds disparately in Dept. of Revenue.

In every one of those cases - whether Alito authored the majority opinion (as in Gomez-Perez and Snyder) or joined another justice's majority or dissenting opinion - he was much more sympathetic to the complaints of inequity than was Scalia. The latter was typically dismissive of the complaints in each case, whether he was in the majority, dissent or a concurrence, and whether he authored his own opinion or joined one written by Justice Thomas. Equal treatment is at least one area of the law where Alito appears to have a much different perspective than Scalia: less rigid, less legalistic, less stingy, and more concerned with equity, basic fairness, and insuring that the laws accomplish their intended purpose of reducing injustice.

A comment on Alito's disagreements with Scalia's "original intent" arguments will appear in later installments on the New York Court Watcher blog. Indeed, much more commentary on the Supreme Court's past term, as well as on the three years of the Roberts Court, will appear in forthcoming posts.