Tuesday, February 16, 2010

Justice Alito's Goat--What Gets It? (Part 1)


Justice Samuel Alito was really steamed at the State of the Union address a couple of weeks ago. Yes, Obama's criticism of a recent Supreme Court decision clearly got Alito's goat. What else does?

First, a brief recap of the now infamous incident. I say "infamous" because virtually everyone thinks that either the President or the Justice was out of line. The choice is typically pretty revealing. But that's another matter.

In his State of the Union address, President Obama criticized the Supreme Court's recent decision in Citizens United v. Federal Elections Commission. Justice Alito apparently believed that the President had mischaracterized the Court's ruling. As readers of this blog surely know, a bare majority of the Justices, including Alito, held that the McCain-Feingold Act's limits on corporate spending for election campaign ads violated free speech.

Obama said that the ruling opens the floodgates for spending by foreign corporations in American elections. A visibly upset Alito was immediately caught on camera openly repeating "Not true."

No doubt, goat got!

So what else really annoys, irritates, even infuriates Justice Alito? What else bothers him, disturbs his tranquility, raises his blood pressure enough that he's willing to express his displeasure so openly?

A good place to look is his dissents. The dissenting opinions he authored. These are the disagreements with his colleagues' rulings where he felt strongly enough that he chose to go public. Strongly enough that he chose to spend his time and use his staff and resources to compose a personal statement to say that his colleagues are wrong. The personal statement does not change the outcome of a case. It only serves to make public the author's disagreements, criticisms, and deeply held beliefs that the majority of his colleagues have made a mistake. A mistake that is so big and so bad that he cannot in good conscience be silent and just go along.

More often than not, despite the near-obligatory "I repectfully dissent," these personal statements are harsh critiques, warnings of untoward consequences, or censures for irresponsible abuse of judicial power. In short, a dissenting opinion is usually the authoring Justice's personal tongue-lashing (pen-lashing?) of his colleagues. And it's one that is so ardently felt that the Justice feels compelled to go public.

So what are the rulings that got Justice Samuel Alito's goat? The decisions reached by a majority of his colleagues that he thought were so wrong that he just had to write a dissenting opinion to tell the world? Now these would tell us at least as much about Alito as they would the decisions of his colleagues.

So let's look.

In the next post on New York Court Watcher, we'll do just that. We'll look at Justice Alito's dissents. To avoid any cherry-picking, unconscious or otherwise, we'll simply look at his last 10. More precisely, we'll look at the last 1o rulings of the Supreme Court that got Alito's goat enough that he wrote a dissent.

(I'm just about finished doing that. So the next post will follow very shortly.)