Monday, February 22, 2010

Justice Alito's Goat--What Gets It? (Part 2: His Dissents)


Justice Samuel "Not True" Alito.

At the State of the Union last month, President Obama criticized a recent Supreme Court decision. Alito was caught on camera visibly taking offense and verbally taking issue.

Alito did not hide his displeasure or disagreement with the criticism. He had been part of the majority that rendered the deeply divided and widely denounced campaign finance decision in the Citizen's United case. He was evidently in no mood to sit idly by while taking a hit from the President.

The question raised in the last post on New York Court Watcher is: what else gets Alito's goat? As was discussed in that post, one of the best places to look for what really moves or incites an appellate judge is that judge's dissenting opinions. So we're going to look at Alito's. At the dissenting opinions he wrote.

These aren't all the disagreements that he's had with his fellow Justices. But these are disagreements which he considered so important, or where he considered his colleagues so wrong, that he felt it necessary to break with them publicly and to explain why in his own written opinion. These strong disagreements should tell us a good deal about Alito. (All of the foregoing was explained more fully in that last post: Justice Alito's Goat--What Gets It? (Part 1), Feb. 16, 2010.)

So let's take a look at Justice Alito's last 10 dissents. Specifically, what did the majority of his colleagues decide the last 10 times that Alito was provoked into writing a dissenting opinion? Stated otherwise, what rulings really got his goat?

In reverse chronological order:

1) Granting a hearing to a death row inmate to explore the misconduct at his trial between the judge and the jury. (Wellons v. Hall [2010].)
Following the defendant's conviction for capital murder, it was learned that there were improper interactions between the jury and the judge during the trial, The jurors had presented the judge and the bailiff with chocolates shaped like a penis and a woman's breasts. The Supreme Court ordered a hearing to explore the misconduct and determine whether the defendant received a fair trial.
Alito objected, arguing that there was no need for the hearing.

2) Holding that a maritime employer is subject to punitive damages for deliberately disregarding the rights of an injured worker. (Atlantic Sounding v. Townsend [2009].)
When a crew member on a tugboat was injured, his employer refused to provide the "maintenance and cure" compensation that traditional maritime law requires. The Supreme Court agreed with both lower courts that the employer's willful misconduct justified imposing punitive damages on him.
Alito disagreed, interpreting a federal statute as eliminating the traditional remedies for seamen.

3) Holding that double jeopardy protection prohibits a re-prosecution after a hung jury in some cases. (Yeager v. U.S. [2009].)
The jury found the defendant not guilty of securities fraud, but it could not reach a verdict on insider trading. If the not guilty verdict meant that the jury found that the defendant had no insider information, then a reprosecution on insider trading--which requires insider information--would then be prohibited. The lower court was directed to reexamine the not guilty verdicts.
Alito argued that the Double Jeopardy Clause does not protect a defendant from being retried on "hung" charges.

4) Ordering the lower court to determine whether the police had a reason that justified searching the defendant's car. (Grooms v. U.S. [2009].)
The police arrested the defendant pursuant to warrants for traffic violations and then searched his car. They were actually looking for and did find a gun which, however, was unrelated to the traffic violations and the warrants. A recent Supreme Court decision [AZ v. Gant (2009)] made clear that there had to be some connection between the search of a car and the reason for which it was legally stopped. [E.g., no connection between the search of a car and rolling through a stop sign.] The Supreme Court ordered the lower court to reexamine the current case in light of that ruling.
Alito disagreed with AZ v. Gant, and he would allow the police to search a car no matter what the infraction for which it was stopped.

5) Again, ordering a lower court to determine whether the police had a reason that justified searching the defendant's car. (Megginson v. U.S. [2009].)
The police arrested the defendant pursuant to a warrant for an unspecific threat to kill his wife. The police then searched the car in which the defendant was a passenger and found drugs and a gun. The Supreme Court ordered the lower court to reexamine the current case in light of AZ v. Gant.
As noted previously, Alito disagreed with AZ v. Gant, and he would allow the police to search a car regardless of the reason for the roadside arrest.

6) Ordering a hearing to reconsider a death sentence in light of mitigating evidence concealed by the prosecution. (Cone v. Bell [2009].)
In the underlying state capital murder case, the prosecution withheld evidence of the defendant's mental condition that might have influenced the jury's death penalty decision. The Supreme Court vacated the federal appeals court's denial of habeas corpus relief and remanded the case to the federal trial court for further proceedings. The latter court was directed to determine whether the mitigating evidence, which the state prosecution had unconstitutionally concealed, would have affected the jury's sentencing decision.
Alito dissented to argue that the case should not be sent to the federal trial court to consider the evidence, but only to the federal appeals court to address the legal issues.

7) Halting the deportation of a foreign citizen until his request for asylum could be reviewed. (Nken v. Holder [2009].)
The Supreme Court stayed the deportation of a citizen of Cameroon who claimed that he would face political persecution and torture in his home country. His request for asylum had been rejected by immigration officials in cursory fashion, and he was ordered deported without delay for judicial review. The Court put a stop to his immediate deportation and directed a full consideration of the evidence in support of asylum.
Alito argued that current immigration law makes a deportation order final and does not permit any delay in a case such as this.

8) Invalidating an automobile search that was based solely on driving with a suspended license. (AZ v. Gant [2009].)
After a driver was arrested for a suspended license, handcuffed, and locked in the back of a patrol car, the police searched the passenger compartment of his car. The Supreme Court held that there was no justification for the search. There were neither safety reasons (the defendant was secured), nor evidentiary ones (the police weren't looking for any further evidence of a suspended license). Without any such reasons justifying the search, it was unconstitutionally unreasonable.
Alito argued that the bright-line rule, allowing police to search a car whenever a driver is arrested for any reason and regardless of the circumstance, is clearer and more workable.

9) Invalidating a confession obtained after an illegally lengthy detention. (Corley v. U.S. [2009].)
Upon his arrest for bank robbery, the defendant was held in custody for interrogation for nearly 30 hours before being brought before a judge. The constitutional requirement is for a prompt presentment to a judge, usually meaning within 6 hours. There was no legal reason for the delay in this case. The Supreme Court held that a confession obtained by means of such an illegal detention could not be used by the government.
Alito argued that a federal statute should be interpreted as allowing confessions to be used as long as actually voluntary, even if obtained as a result of an illegally long detention.

10) A drug manufacturer is responsible for complying with state, as well as federal, safety requirements. (Wyeth v. Levine [2009].)
A drug manufacturer's label was originally approved by the federal Food and Drug Administration but, when additional risks became apparent, the manufacturer failed to provide necessary warnings. The manufacturer was found liable in state court to a patient who suffered injuries as a result of those risks. The Supreme Court affirmed the state court judgment, holding that the federal requirements did not preclude stricter ones imposed by a state unless there was an actual conflict.
Alito argued that regulation by the FDA was intended to be exclusive and, thus, to preempt any state requirements.

Well there they are. Alito's 10 most recent dissents. The 10 most recent cases in which Justice Samuel Alito disagreed strongly enough with the Supreme Court's ruling that he wrote a dissenting opinion to publicly express and explain his opposition.

Now consider the 10 as a whole. Anything salient? Any patterns? Connect the dots.

In the next post on New York Court Watcher, we'll do just that. Some things are pretty clear. What he's dissented about and what he hasn't. A fairly stark profile emerges. Even without drawing conclusions. Without judging. Just looking closely and reporting what's there. What he has chosen to write about.

But ok, before I go on interminably, I think it's plain what we'll cover in the next post.