Friday, November 14, 2008

Alito v. Scalia: Practical Considerations

Guest Post Contributed by Amy Ottaviano,
Albany Law School student and research assistant to Vin Bonventre

For the past few months, working with Professor B., I have been researching the last three terms of the United States Supreme Court. Looking at cases in which Justices Antonin Scalia and Samuel Alito had written or joined different opinions, I focused on the differences in Scalia’s and Alito’s methods of analyses. I found several.

Among the more interesting are these:
(1) The two justices treat text differently. Usually, whereas Scalia prefers to interpret statutes based on a narrow reading of plain text, Alito prefers broader readings that consider the congressional intent underlying the laws. Alito frequently looks to statutory construction, context, and the practical considerations of the law. Some examples of this difference are found in Winkelman v. Parma City School District (2007), Gomez-Perez v. Potter (2008), and CBOCS v. Humphries (2008).

(2) Related to point # 1, Justice Alito does consider practical implications, while Justice Scalia is often more tied to the plain text such that he blindly disregards them. A good example of this is in LaRue v. DeWolff (2007). There, Alito looked beyond the plain language of a statute which established regulations for federal employee retirement plans. Specifically, when the statute was enacted, federal employees were all enrolled in one kind of plan (“defined benefit”), but by the time this case arose, most were enrolled in a different kind of plan ("defined contribution”). Rather than disregard this development, Alito argued that it was more practical to give effect to the overriding congressional intent behind the law as it would apply under the changed circumstances. Scalia ultimately reached the same result in the case as Alito, but he did so in a separate opinion by drawing somewhat unpersuasive comparisons between the two types of retirement plans and insisting that his conclusion rested on the plain text.

Another noteworthy example is Indiana v. Edwards (2007). There, Scalia adamantly supported the right of a criminal defendant to refuse counsel, even where he was deemed mentally incompetent to stand trial without an attorney. Scalia ignored the practical consideration that the criminal defendant was simply incapable of mounting an effective defense without the assistance of counsel. Once again, taking practicality into consideration, Alito joined the opposing opinion that the right to self representation is meaningless if the defendant is incapable of meaningfully representing himself; that an unconditional enforcement of the pro se right does not serve the 6th Amendment’s purpose. [Other examples of the difference in the consideration of practicality may be found in United States v. Gonzalez-Lopez; Burlington v. White (2006); and Begay v. United States (2008).]

Certainly, there are more differences between these justices than the two discussed, and certainly there are many similarities. However, it seems from my research that when Scalia and Alito do disagree, it is often for the reasons discussed here.

Amy Ottaviano, Albany Law School, Class of 2010

[For additional discussion comparing the voting and opinions of Alito and Scalia, see previous posts on the New York Court Watcher: Not Exactly "Scalito", June 12, 2008; Not Exactly "Scalito" (Part 2), June 22, 2008; and Well, Not Exactly NOT "Scalito" Either, Aug.12, 2008.]