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November 16, 2005

All Trees, No Forest: The Strange Logic of Sam Alito

Alito-Kennedy

A BAGnewsNotes Character Snapshot:

When it comes to Sam Alito, is the problem just a political issue, or is it also a psychological one?

If this photo is "obtuse," could it capture the rather odd judicial disposition of our Supreme Court nominee?

For some reason, Sam Alito and his judicial style seems to defy understanding.  In many ways, he seems classically conservative.  Other times, he seems libertarian or just contrarian.   If he has a tendency to take an opposing view, however, the position he takes often resists any clear theoretical or ideological pattern — or logic

When you look more closely, the main theme in Alito’s decisions is the tendency to be overly "technical."  In fact, if there is anything clear and consistent about him, it’s how torturously difficult his dissenting arguments are to explain.

To get a sense of this, you need look no further than his controversial 1991 opinion in Planned Parenthood v. Casey
(in which Alito voted to uphold a Pennsylvania law requiring women to
notify their husbands before having abortions.) In that case, it’s not
so much his position as his reasoning that strikes a strange chord.
Alito argued that many of the potential reasons for an abortion, such
as "economic constraints, future plans, or the husbands’ previously expressed opposition . . . may be obviated" if a women simply sat down and had a discussion with her husband about it first.

Even the conservative Red State blog (link)
suggests that Alito’s dissent lacks a discernible ideological, moral or
philosophical basis. Instead, as the blog concludes, the opinion was
"esoteric." Lawyers, Guns and Money (link) states it a little more bluntly, concluding that Alito’s reasoning in the case was odd,  illogical — even bizarre.

Once you take notice of Alito’s failure of logic (without automatically
trying to overlay a reasonable explanation on top of it), examples
start to pop up all over. A recent overview in the LAT elaborates the tendency.  As the article states:

"Observers note that Alito’s opinions are often narrow, turning on points that might not address the larger question in a case."

The Times cited a 1996 workplace sexual
harrassment case in which Alito ended up on the opposing end of a 10-1
Third Circuit Court ruling. (Another suggestion that Alito’s behavior
is not just ideological is that eight of the ten members in the
majority were Republican appointees.) The majority opinion was based on
a Supreme Court opinion based on the nature and quality of eyewitness
testimony. As the lone holdout, Alito fashioned an argument around the
opinion that the majority had made it too hard for the employer to win
the case.

In looking for an ideological explanation for the judge’s position, The Times
assumed that Alito’s dissent was based on a conservative bias against
plaintiff’s rights. Interviewing "a senior official of the Justice
Department" however, The Times was told that no overarching
legal philosophy was involved. Instead, according to the official, "the
clash between Alito and the court majority … was over a technical
legal point on the burden of proof."

The examples just keep coming.  Perhaps the most damning one, though, involved a case outlined by CNN.com in an article titled "Bush’s new nominee: Not always on the same page as Scalia" (link) involving a minor Social Security case in 2002.

Again, because CNN was looking at the ruling for what it did or didn’t say about Alito’s politics, it failed to pick up on what it had to  say about Alito himself.  Here’s the key section of the article:

In that [Social Security] case, Alito argued passionately with other
members of the 3rd Circuit Appeals Court that a disabled woman, Pauline
Thomas, should be granted benefits because she had been laid off from
her job as an elevator operator and could not find a new job since the
position of "elevator operator" had virtually disappeared from the
economy. A lower court had ruled that a narrow and technical reading of
the Social Security statute did not entitle Thomas to benefits. Alito
called this result "absurd" and overrode the objections of several of
his colleagues and convinced the full 3rd Circuit to overturn the lower
court decision.

Alito’s passion didn’t move the Supreme Court, however, which
overturned his decision in 2003. In a pointed rejection of Alito’s
opinion — accusing him of "disregarding" basic grammatical rules for
interpreting the law — the Supreme Court fell back on the narrow and
technical reading and denied Thomas her Social Security benefits. The
author of this stinging rebuke to Alito? Justice Antonin Scalia.

For the sake of argument, let’s say the conservative Alito isn’t the
kind of doctrinaire ideologue the left fears or the right presumes him
to be. But maybe that’s beside the point. If even Scalia thinks Scalito
lacks a firm handle on the basic grammar of legal interpretation, how
qualified is the nominee based strictly on his capacity for logical
reasoning?

(image: Doug Mills/The New York Times.  November 16, 2005.  Washington.  The New York Times. p.A14)

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