Tuesday, August 12, 2008

Well, Not Exactly NOT "Scalito" Either

In earlier posts on the New York Court Watcher, some emerging distinctions between the voting and opinions of Justice Samuel Alito, on the one hand, and of Justice Antonin Scalia, on the other, were pointed out. (See, Not Exactly "Scalito" (Part 2), June 22, 2008, and Not Exactly "Scalito", June 12, 2008.) But let's not get too carried away. The fact of the matter is that Alito, like Scalia, has an unmistakably--if not unqualifiedly--conservative record.

Let's look at Alito's dissents. Both those he wrote and those he joined. Dissents are always a good place to look to get an accurate sense of a judge or justice. Those public disagreements with one's own court, with a majority of one's colleagues. They're so revealing. [The value of studying dissents and the resulting divided decisions of a court has long been understood. See, e.g., the brief discussion on this blog in New York Court of Appeals: More Dissents in Kaye Court (Part 2: Who? How Many? What?), July 10, 2008, and a somewhat more detailed one in my New York's Chief Judge Kaye: Her Separate Opinions Bode Well for Renewed State Constitutionalism at the New York Court of Appeals, 67 Temple L. Rev 1163 (1994), available at http://ssrn.com/abstract=1154671.]

Over the nearly three full terms since he was appointed to the Supreme Court, Alito has been in dissent 26 times. In those 26 cases in which he publicly took a stand against the decision of his Court, he was together with Scalia more than with any other colleague--except for Justice Clarence Thomas with whom Alito was aligned just as frequently.

Of Alito's 26 dissenting positions, he was aligned with Scalia 13 times. He was with Thomas the same 50% rate. Alito was aligned with Chief Justice John Roberts in 11 dissents. But that was out of 25 cases, because Roberts did not participate in one of the 26. That one case was Hamdan--one of the Guantanamo detainee cases. Actually, Roberts had taken the same position while on the D.C. Circuit as Alito and the other dissenters later took at the Supreme Court. So that case can fairly be counted for the purpose here. Doing so, Alito was aligned with Roberts in 12 of 26 dissents. Just one less than the alignment with Scalia and Thomas.

As for the moderate conservative swing vote Justice Anthony Kennedy, Alito was aligned with him in 8 of Alito's 26 dissents.

With the liberals on the Court, Alito's alignment in dissent was much less. With Justice Ruth Bader Ginsburg, it was only 2 times. That was the lowest for Alito. With the others, however, it was hardly higher. Alito's was aligned in dissent with Justice John Paul Stevens 3 times; and with Justices David Souter and Stephen Breyer, 4 times each.

So, not unexpectedly, Alito was aligned in his dissents much more frequently with the Court's conservatives than with the liberals. And sooooooo, not exactly Scalia. But maybe more like Scalia (and Thomas and Roberts) than like the others.