Is Alito another O’Conner?

by Sal on February 3, 2006

in Politics

Much has been made in the past day about Sam Alito’s joining with Kennedy, Ginsburg, Stevens, Souter, and Breyer on a Death Penalty Case. However, Conservatives should not get concerned this early. The case dealt with a death row inmate who was granted a stay of execution by the court of appeals. The issue before the supreme court was whether or not to vacate the stay of the court of appeals. It wasn’t even on whether or not to grant a stay, nor was it a ruling on the merits of the case. Being his first day on the job, I can understand how Alito would not want to overrule a court of appeals decision quickly. Rush Limbaugh also had some other good points to make on the issue, which include:

  • During the hearings, Alito stated that he would provide a fifth vote as a matter of judicial courtesy in the review of death penalty cases (note this is review, not decisions on the merits) because of the life-and-death matter of the cases.
  • The Supreme court has a tradition, not always but usually followed, of not having 5-4 decisions in decisions on whether or not to review a death penalty case. In may cases, if there are as many as four of the nine who what to allow another review/appeal, one or two more justices would jump on board.

Even Thomas and Scalia have occasionally shown up on the opposite side of cases. Let’s not get all concerned yet.

{ 4 comments… read them below or add one }

Mike February 3, 2006 at 11:21 am

I’ll play the role of battered conservative. Scalia and Thomas occasionally disagree but what are the odds that Alito would do so right off the bat if he didn’t share the same philosophy?

As for 5-4 decisions, how is it consistent to say a 5th vote should be provided out of judicial courtesy yet the court tries to avoid 5-4 decisions on death cases? Regardless, votes should be made on an application of law to facts, not considerations of vote totals. (The exception to this general rule is a procedural vote by the Chief so he can write a narrower opinion if there is a bad holding)

One vote, especially this kind of vote cannot be the basis of an evaluation. Years of decisions are required to get a sense of a judge. Nevertheless, it is discouraging that Alito did not see something Roberts, Scalia and Thomas did.


Mike February 3, 2006 at 11:22 am

Oh yeah, the question.. Alito’s vote does not suggest he is another O’Conner. Yesteday’s decision did not create a new seven prong test unsupported by the text, structure or history of the constitution.


Cannon February 4, 2006 at 10:53 pm

One VERY important difference between Alito and O’Connor that will keep the two of them worlds apart:

Much of O’Connor’s pre-Court experience was as a legislator. I think this is why you see so much reliance on balancing and “seven prong tests.” She was much more concerned with public policy than with the law.

By contrast, Justice Alito has EXTENSIVE judicial experience. Even a cursory review of Alito’s writings as a Court of Appeals judge shows that he is most concerned with (1) upholding the law, and (2) knowing his role. I think that it’s because of (2) that he may has wimped out on this cases: as the junior justice, perhaps he doesn’t want to rock the boat too much, at least yet.

Note, I am not trying to excuse Justice O’Connor’s behavior; I only try to explain it and distinguish her from Justice Alito.


Mike February 5, 2006 at 3:12 pm

That’s called a distinction without a difference. O’Conner comes from the west whereas Alito comes from the east. O’Conner is female, Alito male, etc.

Plenty of candidates with judicial experience have gone bad. O’Conner’s legislative experience may explain her “growth” on the court but it’s hardly dispositive.

Alito failed to see something Roberts, Scalia and Thomas did on his first ruling. Past experience or other irrelevant didtinctions aside, it’s troubling.


Leave a Comment

You can use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

Previous post:

Next post: