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March 22, 2011

Noting Justice Alito's lack of empathy for criminal defendants

I just got around to reading Emily Bazelon's interesting profile of Justice Samuel Alito from this past weekend's New York Times magazine.  The piece, headlined "Mysterious Justice," is not especially kind as Bazelon contends that Justice Alito provides “a window onto right-wing empathy on the court — and onto conservative instincts generally about who deserves our solicitude.”  And these passages should be viewed as spot-on by sentencing law and policy fans:

Alito’s sense of empathy never seems to involve an act of imagination; it rarely extends to people who are not like him. Alito had no kind words for Lilly Ledbetter, for example, who for almost 20 years was paid less than the men doing the same job she held as a supervisor at Goodyear Tire and Rubber.  In 2007, he wrote the 5-4 decision turning away Ledbetter’s sex-discrimination suit because she didn’t go to court soon enough; she didn’t know about the pay discrepancy until years later.  (Congress disagreed with the Supreme Court’s ruling and passed a law to scrap it.)  In general, Alito has been no more likely to uphold civil rights claims than Roberts, and only somewhat more likely than Scalia and Thomas.

Meanwhile, Alito is the least likely justice to show a glimmer of concern for the rights of criminal defendants.  He has ruled for the defense in only 17 percent of the criminal cases he has heard since he joined the court, putting him to the right of Roberts, Scalia, Thomas — and every other justice of the past 65 years other than William Rehnquist, according to Lee Epstein, a professor of law and political science at Northwestern, who ran the numbers for me in the Supreme Court database she works with.

All the pieces of Alito’s record fit together.  As a prosecutor, a federal-appeals judge and now as a Supreme Court justice, Alito is defined not by his broad ideas but by his consistency. Instead of the pizzazz of Scalia or the polish of Roberts, Alito makes his mark by getting to the outcomes conservatives favor with whatever tool is at hand and with even more predictability.

March 22, 2011 at 11:03 AM | Permalink


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Now we need to get someone on the Court as far left as Alito is far right. For balance.

Posted by: lawyer | Mar 22, 2011 1:03:34 PM

so in other words he's a typical govt hack yes man.....Whatever the govt wants to do to it's citizens is just fine with him!

Posted by: rodsmith | Mar 22, 2011 1:09:45 PM

We already have Sotomayor.

Posted by: MikeinCT | Mar 22, 2011 4:10:38 PM

Ed Whelan answers the NYT piece here:


Posted by: Bill Otis | Mar 22, 2011 5:40:05 PM

He seems to have a whopping affinity for every government and corporate argument before him and none for the individual. A Bill Otis clone with perhaps a slightly higher IQ - perhaps slightly less.

Posted by: Steve Prof | Mar 22, 2011 5:57:55 PM


Are you kidding? Sotomayor, a former prosecutor like Alito, as far left as Alito is far right? I don't think the statistics would support you on that one.

Posted by: lawyer | Mar 22, 2011 6:15:56 PM

Whelan did not answer anything. He just republished his march 22, 2010 post.

Posted by: Sean Brennan | Mar 22, 2011 6:25:07 PM

"Ed Whelan answers the NYT piece here:"

WOW,first time I ever saw old Bill let someone else answer for him LOL.

Posted by: Say It Ain't So Bill | Mar 22, 2011 6:50:45 PM

Hmmm... but what about the Constitution? It is a serious question.

I have no problem with law and order types, even conservatives, but what is his grade vs. the Constitution itself? I don't mean to be picky, but the only mention of how Alito rules in relation to the Constitution is...well, never. Only a comparison by Scalia was made, and only in conjunction with a biased nuance ("Antonin Scalia has his constitutional theory of originalism").

Sorry, any article about Supreme Court Justices without any mention of their primary purpose: adjudicating cases with the most intimate constitutional principles of any other justice in the country, is not an article worth merit.

Posted by: Eric Knight | Mar 22, 2011 8:59:53 PM

There is no impropriety nor any problem with arbitrary, baseless personal attacks, when done by the Left to conservative jurists. No mention of the extreme bias of hate filled, in a foaming at the mouth rage, vile feminist lawyer, racist, anti-Capitalism, pro-criminal predator Sotomayor, a pure reflection of Obama jurisprudence.

I do not really distinguish between Alito and Sotomayor. Both are legal realists and in insurrection against Article I Section 1 of the Constitution, stating the Congress shall make the laws.

Posted by: Supremacy Claus | Mar 22, 2011 10:41:52 PM

"Alito makes his mark by getting to the outcomes conservatives favor with whatever tool is at hand"

This, of course, is the very definition of judicial activism: Outcome-based judging, picking who you want to win then constructing arguments to justify one's preferences legally "with whatever tool is at hand." Texas has about 3 or 4 of those folks on our Court of Criminal Appeals. Over time, once the trend becomes blatant, it begins to discredit the court.

Posted by: Gritsforbreakfast | Mar 23, 2011 5:52:56 AM

Lack of sympathy for certain criminals whose cases come before the Court might just as well be described as more sympathy for the victims of crime and for those whose economic circumstances require them to live in the neighborhoods most hard-hit by crime.

Excessive sympathy for criminals could be described as a lack of sympathy for crime victims and the poor.

Posted by: oh puhlease | Mar 23, 2011 8:07:55 AM

As harsh as the system's become in the decades since Nixon, I'd say it's entirely possible to sympathize in nearly equal measures both with victims and citizens convicted of crimes.

Too bad the somewhat vigorous (for timid modern-era Democrats) effort to scuttle Alito's nomination failed. He lends credence to the notion the justices are indeed just a bunch of political hacks.

Posted by: John K | Mar 23, 2011 9:13:33 AM

Alito's opinion in Wall v. Kholi negates Bazelon's thesis. By no stretch of the imagination could that decision have been based on empathy for Kholi, who deserves none. Yet Alito decided in his favor because his position was correct under the law as Congress wrote it.

Posted by: Kent Scheidegger | Mar 23, 2011 12:28:12 PM

Kent - Wall was 9-0. I don't think 9-0 decisions prove much on the issue of result-orientedness.

Posted by: esq | Mar 23, 2011 2:29:58 PM

Quite the contrary, for this particular purpose the position of the other 8 justices is irrelevant. Alito's position in this case is flatly contrary to Bazelon's thesis, and it would be whether it were a lone dissent or a unanimous opinion.

Posted by: Kent Scheidegger | Mar 23, 2011 4:20:20 PM

In addition to what Kent has said, I would note that Justice Alito is fully capable of a lone dissent, and filed one eleven months ago in US v. Stevens (the nauseating "crush video" case).

Posted by: Bill Otis | Mar 23, 2011 6:40:42 PM

Kent: On your theory, Justice Warren was not result-oriented, because he sometimes joined 9-0 opinions ruling for the prosecution. You're of course entitled to your opinion,but I think a lot of people would disagree with you on that one.

Bill: Of course Justice Alito is capable of a lone dissent - when that dissent is upholding a criminal conviction, as it was in Stevens. That's the whole point of Doug's post - that Alito is an outlier when it comes to percentage of rulings for the prosecution.

Posted by: esq | Mar 24, 2011 10:47:04 AM

"On your theory, Justice Warren was not result-oriented, because he sometimes joined 9-0 opinions ruling for the prosecution."

Nothing in my comment even remotely supports that statement. As I quite clearly said, the 9-0 vote in the case is irrelevant for this purpose.

Posted by: Kent Scheidegger | Mar 24, 2011 2:49:39 PM

Kent: You said that Alito's joining a 9-0 defense win negates Bazelon's thesis that he's result-oriented. So any opinion of Warren joining a 9-0 prosecution win would negate any thesis that he was result-oriented, right? If not, I'm missing your logic. (But genuinely curious about it.)

Posted by: esq | Mar 24, 2011 4:25:26 PM

I said that Kholi negates Bazelon's thesis that Alito's votes are based on empathy (which Bazelon goes on to say is reserved for people like him). The term "result oriented" appears nowhere in my comment.

Why do you keep insisting my comment was on result-orientation when it so clearly is on Bazelon's "empathy" thesis?

Posted by: Kent Scheidegger | Mar 24, 2011 5:43:35 PM

O.K., Kent. I'll use your terms. You say that Alito's having once voted for a criminal defendant in a 9-0 case negates Bazelon's thesis that his votes are based on empathy. So, if Justice Warren once voted for the prosecution in a 9-0 case, that would negate any thesis that his votes were based on empathy for criminal defendants, right? Or to use a modern-day example, if Judge Gertner once ruled in favor of the prosecution, that would negate any thesis that her rulings are based on empathy for defendants. Right?

Posted by: esq | Mar 25, 2011 10:59:21 AM

It's not a matter of "terms" but of substance. No one, to my knowledge, has advanced the thesis that Chief Justice Warren based his votes on whether he emphathized with the party in the individual case, and hence there is nothing to refute.

You continue to hammer away with your straw-man-fallacy criticism of something quite different from what I actually wrote. If you are unwilling or unable to understand and discuss my actual point rather than your straw man, there is no point in any further discussion.

Posted by: Kent Scheidegger | Mar 25, 2011 12:44:41 PM

esq. --

My point, which I think you missed, was that Alito's vote in Stevens showed empathy for the (literally) downtrodden, that being the animals that were being crushed for the "amusement" of whoever watches this kind of stuff. Anyone with a pet knows that animals are capable of feelings similar, if not largely identical, to those of human beings. An animal can feel terror and pain.

You're looking at Alitio's vote in Stevens in a formalistic way, rather than making an effort to understand the empathy that actually lay behind it.

Moreover, even if one were to adopt a formalistic approach, it fails to make your point. You say that Alito is an "outlier." As best I can see, this means that he casts a greater percentage of votes for the prosecution than any of the other Justices.

The problem is, of course, that SOMEONE is going to occupy that spot. But to say that Justice X occupies it is not to say that the REASON he occupies it is empathy for the prosecution. (This is also largely the problem in Ms. Bazelon's analysis).

You actually have to see what the opinions say. Before Alito joined the Court, Scalia was said by many to vote out of "empathy" for the prosecution, but that was not true. The reason Scalia mostly voted for the prosecution (then and now) has to do with his vision of what law means, not with sentiment. This is the same reason, incidentally, that led him to vote AGAINST the prosecution in some very important cases, e.g., Apprendi and Blakely (which he wrote).

With both Scalia and Alito (and Roberts and Thomas), it's not their opinions of the parties that matter. It's their opinions of jurisprudence that matter. And it is that, as much as outcomes, which differentiates them from their colleagues.

Posted by: Bill Otis | Mar 26, 2011 11:35:06 AM

Thanks for your share,thanks a lot.Good luck!

Posted by: Big pony | Apr 11, 2011 6:18:13 AM

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