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April 29, 2023
Notable new commentaries on Justice Alito's criminal justice jurisprudence
The Harvard Journal of Law & Public Policy this past week posted a significant number of new commentaries here under the banner The Jurisprudence of Justice Samuel Alito: A Symposium. Here is how the links to the pieces are introduced:
The essays in this symposium, authored by prominent federal judges and renowned academics, focus in-depth on Justice Alito’s approaches to a wide variety of areas of law. Versions of most of these essays were presented as addresses at a March 2022 symposium convened by Professor Robert P. George and Yuval Levin, co-hosted by the James Madison Program in American Ideals and Institutions at Princeton University and the American Enterprise Institute.
Two of the 14 pieces in this collection are focused on Justice Alito's criminal justice jurisprudence:
- Justice Alito on Criminal Law – Kate Stith
- Justice Alito on Criminal Procedure – Hon. Andrew S. Oldham
The piece by Judge Oldham mentions some post-Booker cases in passing, and the piece by Professor Stith discusses the sentencing/criminal history stories around the Armed Career Criminal Act at great length. Both pieces stress what they call Justice Alito's " pragmatism" in this arena.
These pieces generally fail to note that Justice Alito's version of criminal justice "pramatism" seems to mean that the police and prosecutors, and not the individual, will almost always prevail. This 2017 empirical article detailed that Justice Alito had not once voted in favor a Fourth Amendment litigant in a divided case. I have not been able to find a similar accounting for other parts of the SCOTUS criminal docket, but I have a hard time recalling divided cases in any criminal justice arena in which Justice Alito voted for the criminal defendant. That reality leads me to think of Justice Alito's "pragmatic" criminal justice jurisprudence to be most fundamentally about prioritizing state and federal criminal powers over individual rights and protections.
April 29, 2023 at 09:38 PM | Permalink
Comments
The quality of a Justice's work cannot be assessed by the identity of the winning or losing party. That is partisanship and consequentialist thinking. Picking winners and losers, and focusing on who wins and who loses, is for the political branches, not the judiciary. Judges should concern themselves solely with legal reasoning -- exactly the thing this commentary does not highlight (or even mention for that matter).
Posted by: Bill Otis | Apr 30, 2023 11:11:37 AM
Mr. Otis, can the quality of a Justice's work be assessed in part by his silence in the face of another Justice's corruption? Comedian Roy Wood made the following telling "joke" at the White House Correspondents' dinner last night:
"This man bought a Supreme Court justice. Do you understand how rich you have to be to buy a Supreme — a Black one on top of that. There’s only two in stock and Harlan Crow owns half the inventory,”
Hard to even read what the Court or any its members writes until the Court addresses and deals with the stench of corruption emanating from them.
Posted by: anon12 | Apr 30, 2023 3:20:06 PM
Always nice to have you back, Bill, but are you serious with this?: "Picking winners and losers, and focusing on who wins and who loses, is for the political branches, not the judiciary." Functionally, that seems precisely backward --- the judiciary resolves cases and controversies, which means exactly "picking winners and losers" among the parties that bring cases and controversies to the courts to be resolved. The political branches, in critical contrast, can try to find ways to make everyone a winner (or everyone a loser).
Of course, what legal reasoning is used by various courts and judges to pick winners and losers should certainly be an aspect of assessing the quality of their work. But courts are in the very business of resolving disputes, rendering judgments, and picking winners and losers --- they are not philosophers tasked with impressing people with their rhetoric --- and so it is absolutely appropriate to note who is winning and losing when seeking to assess the work of a jurist.
Moveover, "pragmatism" is often defined (generally and in legal circles) as an approach that looks toward practical applications and results rather than grand ideologies. So understood, a judge who is called a pragmatist is a judge who, even more than others, is seemingly concerned with (and should be judged by) the results of rulings. In Justice Alito's case, as I mentioned, his version of criminal justice "pramatism" seems to mean that the police and prosecutors, and not the individual, will almost always prevail. That's nothing to seek to hide or obscfucate ... unless one is in a sesne acknowledging that there are few deeper principles behind a voting record that prioritizes state and federal criminal powers over individual rights and protections.
Posted by: Doug B | Apr 30, 2023 4:47:45 PM
anon12 --
"Hard to even read what the Court or any its members writes until the Court addresses and deals with the stench of corruption emanating from them."
Then don't read it. Your analysis of the opinions you refuse to read can be assessed in light of your willful ignorance.
P.S. False accusations against prominent black people have never been heard of. HAHAHAHAHA
Posted by: Bill Otis | Apr 30, 2023 5:57:36 PM
Doug --
I was using the phrase "winners and losers" in the sense in which you were using it initially -- to wit, in talking about classes of litigants and their shared interests, not individual parties in discrete cases. In that sense, I repeat that evaluating the work of judges should not depend on who or which group or which group of interests, over the course of their years on the bench, won and lost.
Of course I get it that you disagree with this. Indeed, part of your eagerness to see Justice Brown-Jackson on the Court lay in your (almost certainly correct) belief that she'll more often be a vote for the criminal (more often, that it, than the center of the Court, that being roughly Kagan-Roberts-Kavanaugh).
You believe in consequentialist judging much more than I do. For example, it made no difference to me in the Dobbs case whether and to what extent getting an abortion becomes more difficult. That's a big question for politicians but not at all a question for judges. The question before the Dobbs Court was whether the text of the Constitution provides a right to abortion. It provides no such thing (just read it), so the majority was right. Whatever the fallout may be is for politicians to decide.
Posted by: Bill Otis | Apr 30, 2023 6:14:52 PM
Mr. Otis, you write, "The question before the Dobbs Court was whether the text of the Constitution provides a right to abortion. It provides no such thing (just read it), so the majority was right" The text also provides no right to have children at all. Does that mean the state could forbid married couples from having more than two children? More than one? Only males? No children at all?
Posted by: Mary quite Contrary | Apr 30, 2023 6:55:14 PM
Mary --
First, why the fake name? Is that supposed to be cute?
As to your question: Read the mode of analysis the Court adopted in Bruen (one of Doug's favorite cases). The right of married couples to have children was universally understood as part of the basic privileges and immunities of citizens at the time of the Founding, and therefore stands on a vastly different constitutional footing from the "right" to have an abortion, which was not only not so understood at the Founding but was condemned as a crime in the great majority of states.
Posted by: Bill Otis | Apr 30, 2023 7:18:42 PM
Mr. Otis hardly needs my support, but let me supplement his responses with this: A truly serious analysis of J. Alito's jurisprudence on criminal law should include analysis of such jurisprudence by the appellate courts. After all, the Court's criminal docket comes from the appellate courts. In other words, rather than J. Alito being too pro-prosecution, perhaps it is the lower courts that are too pro-criminal.
Posted by: htjyang | Apr 30, 2023 8:37:57 PM
Mr Otis, how come you don't knock your male buddies like Federalist and Tarls for using fake names?
Posted by: Mary quite Contrary | Apr 30, 2023 11:39:21 PM
Bill, judicial reasoning is in service to reaching results, which is what judges are primarily tasked with doing. (Indeed, the vast majority of SCOTUS decisions are results without any reasoning --- see any Monday morning order list. And if any judge gave all his reasoning without a result, we would say he did not do his full job.) Consequently, results are necessarily and fundamentally part of how we assess any jurist, that is, by "who or which group or which group of interests, over the course of their years on the bench, won and lost."
I suspect your point may be that we do not want judges to be "results-oriented." But if that is what you mean, then it is even more important to review and assess a judges' results in order to assess whether they are engaging in "results-oriented" approaches to their work. (And, of course, Justice Alito's CJ votes is agreat example of a results-orietned jurisprudence. I can already he will be a vote for state power over an individual in any seriously contested case.)
As stressed before, the actual votes of any Justice --- and "who or which group or which group of interests, over the course of their years on the bench, won and lost" --- is not itself a something that should need to be hidden or obscfucated. Its the defining character of a jurist, who should be assessed by his rulings and his reasoning.
Posted by: Doug B | May 1, 2023 4:18:49 PM
Alito's jurisprudential principle respecting criminal procedure cases: "when in doubt always vote against the defendant."
Posted by: public defender 22 | May 1, 2023 7:28:54 PM
Bill, I have to disagree with you--Alito's votes are fair game as is the analysis--it's just that there may be some disingenuous use of the record. Doug, results-only stuff is interesting--but the other question is an analysis of what was written.
Posted by: federalist | May 2, 2023 11:09:24 AM
I agree 100%, federalist, that the analysis matters as it helps inform our understanding of what led to the result. But the result is a critical piece to understanding how to assess the analysis, and Bill’s suggestion otherwise borders on the comical.
Posted by: Doug B | May 2, 2023 1:45:32 PM
Doug --
What borders on comical -- indeed, what goes well past that border -- is your view that all drugs should be legalized. But I have refrained from using that sort of acerbic language because it is inconsistent with having a respectful conversation.
Your comments section has its share of airheads and sneering jackasses. Let's you and I make an effort not to join them.
Posted by: Bill Otis | May 2, 2023 8:05:09 PM
Fair enough, Bill, and I apologize for the sharp adjective. That said, I do find it somewhat comical to assert that judges should be assessed based "solely" on legal reasoning with absolutely no regard given to their votes/judgments. Indeed, I strongly suspect you do not really believe in a "reasoning solely" approach to judicial assessment because you frequently stress, here and elsewhere, judicial votes and their results in your praise and/or criticisms of various jurists.
Intriguing here, Bill, is that I would expect you to be especially praiseworthy of Justice Alito's voting pattern given that it is more pro-state CJ power/prosecution than any other Justice (perhaps in history). And yet, you seem disinclined to highlight and laud this notable and defining aspect of Justice Alito's record over nearly two decades as a Justice. Wouldn't you have a higher regard for other Justices if they had a similar pattern of votes? Or do you see more "quality" in the work of other Justices who rely on originalist principles to sometimes rule against the state (I am thinking especially of Justices Scalia, Thomas and Gorsuch)?
I am inclined to guess, Bill, that you are generally eager to be critical of "results-oriented" judging --- and yet you recognize that the sound accounting of Justice Alito's record in criminal cases is as a results-oriented jurist. Ergo this effort to say let's not look at results (even though you favor these consistently pro-state CJ power/prosecution results).
Posted by: Doug B | May 3, 2023 6:57:41 AM
It's funny Doug, you never accused or made innuendos about the judging of the libs on CJ issues.
Posted by: federalist | May 3, 2023 10:49:28 AM
It's funny, federalist, that you do not seem to understand this is a post/thread about Justice Alito's CJ work based on two new articles linked above, If/when articles are written about the CJ work of other Justices, I will certainly share my views on their work (which, sensible, should be assessed in part based on their actual votes as well as their reasoning).
Even more importantly, this discussion is not at all about "accusing or making innuendos" about Justice Alito's record in CJ cases. It is about making the very straightforward and direct observation that Justice Alito's voting pattern is more pro-prosecution than any other Justice (perhaps in history). That is basic description of reality, not an accusation or innuendo. And the fact that you used those terms reinforces my sense that Justice Alito's CJ voting record, which is far more pro-state than any of the very conservative Justices with which he has served, really should be seen as embarassing for anyone who is not a statist.
Posted by: Doug B | May 3, 2023 3:54:20 PM
Doug,
Since you post and support some of the wackiest articles and “research” I’ve ever seen, you should be suffering more embarrassment than federalist ever could.
Of course we all know your pro-criminal ilk is incapable of it.
Posted by: TarlsQtr | May 3, 2023 10:23:14 PM
Not sure what exactly you consider "wackiest" or an "embarrassment," Master Tarls, but I am sure I do not try to hide my real name in this context. I am also sure, when it comes to criminal justice issues, Justice Alito's record is more statist than perhaps any Justice in the history of SCOTUS.
I find it interesting that you and Bill and federalist seem keen to take shots at the messenger rather than defend Justice Alito's statist record in CJ cases. But perhaps that is because you all in some way realize that the Framers, who wrote a Bill of Rights full of limits on the power of the federal government to criminally punish, were part of the "pro-criminal ilk" that you are keen to rail against.
Posted by: Doug B | May 4, 2023 5:25:03 AM
Doug --
I don't recall ever attacking Brennan, Marshall, Douglas or Warren, etc, because of their outcomes. Do you have a quotation from me where I did that? I attacked their wildly expansionist view of the "living Constitution" -- in other words, the mode of analysis they employed. Now that mode of analysis tends mostly to align with certain results, as does Alito's (and as did Rehnquist's), but "tending mostly to align with" is a different matter from "voting for the government because it's the government." I'm sure you see this.
Posted by: Bill Otis | May 4, 2023 4:47:54 PM
Bill, I have just been spotlighting that "Justice Alito's version of criminal justice 'pramatism' seems to mean that the police and prosecutors, and not the individual, will almost always prevail" and that Justice Alito's CJ voting record is more pro-state than any other Justice. These observations are meant to be accurate descriptions of Justice Alito's (outlier) voting record in CJ matters, not a personal "attack" (though I do think he often reaches the wrong result).
In divided CJ cases, Justice Alito ALWAYS votes for the government, whereas all other conservative justices sometimes do not vote for the government, and so it does often seem like the so-called "pragamtic" approach that he applies essentially involves "voting for the government because it's the government." Can you cite to any case that breaks from that mold over the 17 years and hundreds of CJ cases resolved by the Court during Justice Alito's tenure?
That's the point: Justice Alito does not just "tend" to vote for the government, rather in every single contested case for nearly two decades he has prioritized state and federal criminal powers over individual rights and protections. Maybe I am missing or forgetting a CJ case or two, big or small, in which Justice Alito voted with the individual against the government in a divided matter. But I sincerely cannot recall any such case, and I would welcome you pointing to any example that would undercut my fear that the most accurate way to understand Justice Alito's "pragmatic" jurisprudence in CJ cases is to note that he always votes for the government because it's the government.
Posted by: Doug B | May 4, 2023 5:44:04 PM
Alito, to his everlasting discredit (in my mind) jumped on the bandwagon in Maples v. Thomas. He actually had the temerity to dress down the Alabama AG at oral argument--second-guessing the AG for not waiving the failure to timely file.
And Doug, Sotomayor's record can be criticized, and in many cases, she doesn't have the intellectual goods.
Posted by: federalist | May 5, 2023 12:04:33 PM
federalist: I think every Justice's record can be criticized, and I also think the only full and sensible way to assess any Justice's "record" is to look at his/her rulings as well as his/her reasoning. That is the general point (which I think you agree with and that Bill perhaps disputes), namely that votes/rulings matters in any complete assessment of a jurist. The specific point is that the outlier pattern of Justice Alito's CJ rulings suggests, to use Bill's phrasing, that he always votes for the government because it's the government.
Can you think of a single case involving a divided vote, federalist, in which Justice Alito voted for the individual and against the prosecution? Over 17 years and many hundreds of opinions, I have to think there have to be at least a few. But I sincerely cannot recall any.
Posted by: Doug B | May 5, 2023 12:16:54 PM
Maples v. Thomas.
Posted by: federalist | May 8, 2023 12:52:26 PM
That's a good one, federalist. Any others?
Posted by: Doug B | May 8, 2023 1:35:51 PM
