Samuel Alito - U.S. Supreme Court Career

U.S. Supreme Court Career

Because Alito joined the court mid-term, he had not heard arguments for many cases which had yet to be decided. The decisions in most of those cases were released without his participation (i.e., with an 8-member Court); none were 4–4, so Alito would not have been the deciding vote in any of them if he had participated. Three cases – Garcetti v. Ceballos, Hudson v. Michigan, and Kansas v. Marsh – were reargued, since a tie needed to be broken.

Alito delivered his first written opinion on May 1, 2006 in the case Holmes v. South Carolina, a case involving the right of criminal defendants to present evidence that a third party committed the crime. (Since the beginning of the Rehnquist Court, new justices have been given unanimous opinions to write as their first majority court opinion, often done as a courtesy "breaking in" of new justices, so that every justice has at least one unanimous, uncontroversial opinion under his/her belt). Alito wrote for a unanimous court in ordering a new trial for Bobby Lee Holmes due to South Carolina's rule that barred such evidence based on the strength of the prosecution's case, rather than on the relevance and strength of the defense evidence itself. His other majority opinions in his first term were in Zedner v. United States, Woodford v. Ngo, and Arlington Central School District Board of Education v. Murphy.

In his first term, Alito voted fairly conservatively. For example, in the three reargued cases (Garcetti v. Ceballos, Hudson v. Michigan and Kansas v. Marsh), Alito created a 5–4 majority by voting with four other conservative Justices – Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. He further voted with the conservative wing of the court on Sanchez-Llamas v. Oregon and Rapanos v. United States. Alito was also a dissenter in Hamdan v. Rumsfeld, alongside Justices Scalia and Thomas.

While Alito's voting record is conservative, he does not always join the most conservative Justices on the Court. On February 1, 2006, in Alito's first decision sitting on the Supreme Court, he voted with the majority (6–3) to refuse Missouri's request to vacate the stay of execution issued by the Eighth Circuit for death-row inmate Michael Taylor; Chief Justice Roberts and Justices Scalia and Thomas were in favor of vacating the stay. Missouri had twice asked the justices to lift the stay and permit the execution.

In 2003, Congress passed the Partial-Birth Abortion Ban Act, which led to a lawsuit in the case of Gonzales v. Carhart. The Court had previously ruled in Stenberg v. Carhart that a state's ban on partial birth abortion was unconstitutional because such a ban did not have an exception in the case of a threat to the health of the mother. The membership of the Court changed after Stenberg, with John Roberts and Samuel Alito replacing William Rehnquist (a dissenter in Roe) and Sandra Day O'Connor (a supporter of Roe) respectively. Further, the ban at issue in Gonzales v. Carhart was a federal statute, rather than a state statute as in the Stenberg case.

On April 18, 2007, the Supreme Court handed down a decision ruling constitutional the Partial-Birth Abortion Ban Act. Justice Anthony Kennedy wrote for the five-justice majority that Congress was within its power to generally ban the procedure, although the Court left open the door for as-applied challenges. Kennedy, writing for the court, implied but did not absolutely reach the question whether the Court's prior decisions in Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart were valid, and instead the Court said that the challenged statute is consistent with those prior decisions whether or not those prior decisions were valid.

Alito joined fully in the majority as did Chief Justice Roberts. Justice Thomas filed a concurring opinion, joined by Justice Scalia, contending that the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed, and also noting that the Partial-Birth Abortion Ban Act may exceed the powers of Congress under the Commerce Clause. Alito, Roberts, and Kennedy did not join that assertion. Justices Ginsburg, Souter, Breyer, and Stevens dissented, contending that the ruling ignored Supreme Court abortion precedent.

Moreover, despite having been at one time nicknamed "Scalito," Alito's views have differed from those of Scalia (and Thomas), as in the Michael Taylor case cited above and various other cases of the 2005 term. Scalia, a fierce critic of reliance on legislative history in statutory interpretation, was the only member of the Court in Zedner v. United States not to join a section of Alito's opinion that discussed the legislative history of the statute in question. In two higher-profile cases, involving the constitutionality of political gerrymandering and campaign finance reform (LULAC v. Perry and Randall v. Sorrell), Alito adopted narrow positions, declining to join the bolder positions advanced by either philosophical side of the Court. According to a scotusblog.com analysis of 2005 term decisions, Alito and Scalia concurred in the result of 86% of decisions (in which both participated), and concurred in full in only 75%.

In the 2007 landmark free speech case Morse v. Frederick, Alito joined Roberts' majority decision that speech advocating drug use can be banned in public schools, but also warned that the ruling must be circumscribed that it does not interfere with political speech, such as the discussion of the medical marijuana debate. In 2007 he was awarded the Knight Grand Cross of the Order of Merit of the Italian Republic.

Alito's majority opinion in the 2008 worker protection case Gomez-Perez v. Potter cleared the way for federal workers who experience retaliation after filing age discrimination complaints to sue for damages. He sided with the liberal bloc of the court, inferring protection against retaliation in the federal-sector provision of the Age Discrimination in Employment Act despite the lack of an explicit provision concerning retaliation.

Alito was the sole dissenting vote in Snyder v. Phelps (2011), arguing in his dissenting opinion that protesting at funerals amounted to infringement on the rights of the grieving.