I must decline to support.....

Due to the unfortunate photo of Judge Alito's Philadelphia Phillies dedication, I must decline to take his baseball understanding and ideas seriously.

Alito Dissenting Opinions

Alito's Dissents Show Deference to Lower Courts
By ADAM LIPTAK
and JONATHAN D. GLATER
Judge Samuel A. Alito Jr. dissents slightly more often than the typical appeals court judge, and his dissenting opinions are almost always more conservative than the majority's.

In the several hundred cases he heard over 15 years on the United States Court of Appeals for the Third Circuit, Judge Alito dissented more than 60 times, often taking issue with decisions that sided with criminal defendants, prisoners and immigrants.

He frequently voted in favor of the government and corporations in these dissents. He generally deferred to what he called the good faith judgments of other participants in the justice system, including police officers, prosecutors, prison wardens, trial judges and juries. He appeared particularly reluctant to order new trials over what he called harmless errors in the presentation of evidence or in jury instructions.

Judge Alito was appointed by the first President Bush. Academic studies of dissenting opinions generally predict that judges appointed by Republican presidents will dissent more often in cases in which both of the other judges on three-judge panels were appointed by Democratic presidents.

But Judge Alito does not follow that pattern: he dissented in 4 cases in which both of the other judges were appointed by Democrats and in 26 in which they were both appointed by Republicans.

His court, which hears cases from Delaware, New Jersey, Pennsylvania and the Virgin Islands, is by some measures the second-most liberal in the country, after the United States Court of Appeals for the Ninth Circuit, in San Francisco.

Cass R. Sunstein, a law professor at the University of Chicago, reviewed 41 of Judge Alito's dissents and said he had been able to code about half of them in ideological terms.

"Somewhere between 100 percent and 85 percent are to the right of the majority, depending how you count," Professor Sunstein wrote in an e-mail message.

The Supreme Court rejected the position set out by Judge Alito in a dissent in an abortion case. But in at least three other cases, it adopted the position advanced in his dissent.

Frank B. Cross, a law professor at the University of Texas who has compiled a database tracking how the Supreme Court reviews appellate decisions, said: "This is the highest of anyone in the database. It shows that when his court took an important and controversial case and got it wrong, from the perspective of the Supreme Court, he identified that and dissented. Indeed, his dissent may have been part of what got the Supreme Court's attention."

One theme that runs through Judge Alito's dissents is deference to the views of the people and the agencies closest to the facts and thus, in his view, best situated to make decisions.

He voted to dismiss a case, already rejected by a lower court, brought by Inez Baker and three of her children, who said they had been mistreated by the police when they happened to visit an apartment during a drug raid.

"There was," Judge Alito wrote, "a good likelihood that visitors to the apartment were drug buyers. While it was certainly possible that there would also be some innocent visitors to the apartment (such as the Bakers), I think that there was probable cause to search anyone found on the premises."

Judge Alito almost always showed reluctance to interfere with a case after a jury had decided it. In a 1991 appeal in a murder case from the Virgin Islands in which the defendant had claimed self-defense, the trial judge failed to tell the jury that the prosecution had to prove that the killing was not in self- defense. The majority reversed on that ground.

Judge Alito acknowledged that it was possible that the instructions given confused the jury. But, he wrote, "the mere possibility of prejudice to the defendant is not enough to show plain error."

In a 1997 case, the majority ordered a new trial for a man whose lawyer had advised him to plead guilty to possession of a firearm. Judge Alito disagreed, writing that the lawyer's advice "is properly viewed under our precedents as a tactical decision that, while perhaps debatable, remains safely within the expansive realm of constitutional reasonableness."

When a 1995 panel majority showed special consideration to a Pakistani man seeking to avoid deportation because he was caring for his sick brother, Judge Alito objected. He said that the decision of the Board of Immigration Appeals, or B.I.A., deserved respect and that the board had ruled that humanitarian considerations were outweighed by the man's conviction 10 years earlier for conspiring to import a pound of heroin.

"The majority has usurped the B.I.A.'s place and weighed the relevant factors for itself - apparently in accordance with its own views of drug and immigration policy," Judge Alito wrote. "I cannot endorse this approach."

Federal courts hear relatively few personal injury cases, but Judge Alito dissented in four of them. In two, he voted against the injured plaintiff.

For example, after a truck driver lost a products liability trial against the manufacturer of his vehicle, the appeals court majority ordered a new trial, in part on the ground that the trial judge had improperly allowed the jury to hear that the driver was not wearing a seat belt. Judge Alito agreed that was a mistake but said the error was harmless.

But in other injury cases, Judge Alito would have let verdicts stand. In one, a group of doctors sought to have a jury's verdict against them overturned in a lawsuit by the parents of a girl who died as a result of a liver disease.

The doctors argued, Judge Alito wrote, "that they should escape all or part of the liability for their malpractice because the young woman and her parents were foolish to have followed their bad advice. The majority holds that the trial judge should have charged the jury on this defense. In my view, however, there is no evidence that the girl and her parents were negligent. Their only mistake was to trust the defendants' advice, which, although negligent, was not so implausible on its face that lay people should have known better than to have followed it."

Some judges, particularly when they are not writing for the majority, adopt a more freewheeling style in cases with quirky facts. Judge Alito, however, keeps a poker face.

In a false advertising case concerning whether Extra Strength Maalox Plus was right in saying that it is the "strongest antacid" - a claim begging for a little judicial levity, perhaps - Judge Alito sided, in studied, dry terms, with Mylanta II.

The characterization, Judge Alito wrote, "is not literally false with respect to liquid E.S.M.P. because liquid E.S.M.P. is superior to liquid Mylanta II at neutralizing acid in the laboratory. But as the district court found, E.S.M.P. is not 'strongest' at providing relief for humans."

The Alito dissents that have attracted the most attention are his 1991 opinion in Planned Parenthood v. Casey, voting to uphold a Pennsylvania law requiring women to notify their husbands before having abortions, and his 1996 opinion in United States v. Rybar, voting to strike down a federal law regulating machine guns on commerce clause grounds.

The Rybar case did not reach the Supreme Court, but Casey did. In 1992, the court rejected Judge Alito's views. But that case was the exception; in three other cases in which Judge Alito dissented, the court adopted his views.

His majority decisions have attracted less attention, Professor Cross said. "That's a sign that he's writing modest opinions," he said. "The Supreme Court is likely to take on an opinion that is broad."



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Scalito?

As proud as I am as an Italian American, it is much more important to look at Judge Alito's decisions as a federal judge than to disparage him as an unyielding, acerbic Scalito!

Let's look at the Casey decision. Judge Alito favored that regulations on abortion rights as not being an undue burden. While he supported this decision that required a woman to notify her husband, he went to great lengths to support the "State's Rights" legislative question here, and he showed understanding to the difficulties that women will face in these circumstances.

Quoting from Wash. Post 11/1/05,

They (the other judges involved in the Casey decision) noted that most women seeking abortions were unmarried, and thus unaffected by the provision, and that among married women, most chose to involve their husbands in the abortion decision. But for those married women who feared the consequences of telling their husbands, the two judges said, the burden was indeed severe and failed to meet the test. Judge Alito disagreed. The number of women who would be adversely affected by the provision, admittedly small, was unknown, he said, and the evidence of likely impact was insufficient to provide for striking down a new law on its face, before its impact could be tested and demonstrated. "I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women," he wrote.
Judge Alito's dissenting opinion went on to note that "needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of this provision is a matter of grave concern." But the Pennsylvania legislature took that concern into account, he said, in writing into the law an exception for a woman who "has reason to believe that notification is likely to result in the infliction of bodily injury upon her." Further, he said, the law would be "difficult to enforce and easy to evade," because it required no proof beyond a woman's word that she had notified her husband. The provision survived his understanding of the undue burden test, Judge Alito said, adding that "the Pennsylvania legislature presumably decided that the law on balance would be beneficial" and "we have no authority to overrule that legislative judgment, even if we deem it 'unwise' or worse."

What bothers me more about the Casey Decision is that the law requires a 1) 24 hr waiting period, and 2) counseling from both sides of the issue. I personally believe that both regulations should be a women's perogative before choosing to abort, but mandating it by law is a breach of privacy.

Additionally, Judge Alito is a strict constructionist. He upheld the 11th Amendment is protecting States from being sued by former employees with regard to the Family Leave Act. Also, he supported the purchasing of machine guns within the Commonwealth of Pennsylvania due to the fact that the case was argued as an "Inter State Commerce" issue for which Judge Alito did not believe the issue had any standing.

Let us review some of his legal opinions. These summations were compiled by NPR.

On Abortion:
Planned Parenthood v. Casey, 1991
Alito had the lone dissent in the 1991 case of Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.
The U.S. Supreme Court in 1992, in a 6-3 ruling, struck down the spousal notification requirement, but Chief Justice William Rehnquist quoted from Alito's opinion in his dissent.
Opinion Excerpt: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion."

----------------------------------------------------
Planned Parenthood v. Farmer, 2000
In 2000, Alito joined the majority that found a New Jersey law banning late-term abortions unconstitutional. In his concurring opinion, Alito said the Supreme Court required such a ban to include an exception if the mother's health was endangered.
Opinion Excerpt: "I do not join Judge Barry's opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court's decision in Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.... The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother."

----------------------------------------------------
On Religion:
Fraternal Order of Police v. City of Newark, 1999
The 3rd Circuit ruled 3-0 that Muslim police officers in the city can keep their beards. Previously, the police had made exemptions in its facial hair policy for medical reasons (a skin condition known as pseudo folliculitis barbae) but not for religious reasons.
Opinion Excerpt: "We cannot accept the department's position that its differential treatment of medical exemptions and religious exemptions is premised on a good-faith belief that the former may be required by law while the latter are not."

----------------------------------------------------
ACLU v. Schundler, 1999
In 1999, Alito was part of a majority ruling of the 3rd U.S. Circuit Court that freed Jersey City, N.J., from an earlier court ruling that had blocked the city from erecting a holiday display at City Hall. The court held that the display did not violate the establishment clause of the First Amendment -- the clause interpreted as a call for the separation of church and state -- because the city had modified its original display of a creche and a menorah to include a Frosty the Snowman, Santa Claus, red sleigh and a banner hailing the importance of diversity.
Much of the argument in this case came down to the relative prominence of the secular symbols in the display as compared to the religious symbols.
Opinion Excerpt: "With the possible exception of this factor, however, we see no reasonable basis for distinguishing the modified Jersey City display from the display upheld in Lynch. The plaintiffs and our dissenting colleague suggest that the cases can be distinguished on the ground that in the modified Jersey City display 'Santa Claus and Frosty the Snowman clearly do not constitute separate focal points or centers of attention coequal with the Menorah and the Nativity Scene,' Appellees' Br. at 14, but we see no basis for this distinction. Appendices A and B to this opinion, which depict the modified displays on both sides of City Hall in Jersey City, speak for themselves. In the modified display on the right, the sleigh is just as much a focal point as the figures in the nativity scene. And in the modified display on the left, the tree is just as much a focal point as the menorah."

----------------------------------------------------
On Freedom of Speech:
The Pitt News v. the Attorney General of Pennsylvania, 2004
In July 2004, the 3rd Circuit Court ruled that a Pennsylvania law prohibiting student newspapers from running ads for alcohol was unconstitutional. At issue was Act 199, an amendment to the Pennsylvania Liquor Code passed in 1996 that denied student newspapers advertising revenue from alcoholic beverages.
Alito said the law violated the First Amendment rights of the student newspaper, The Pitt News, from the University of Pittsburgh.
Opinion Excerpt: "If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment."

----------------------------------------------------
On Sex Discrimination:
Sheridan v. Dupont, 1996
In 1996, Alito filed a partial dissent in the sex discrimination case of Sheridan v. Dupont. Barbara Sheridan, a former employee of the Hotel du Pont, filed an action under the Civil Rights Act of 1964 claiming that she had not been promoted because of her gender. She also claimed in her filing that the hotel had retaliated against her when she complained about sex discrimination.
Alito's primary disagreement with the majority in this case was over the issue of summary judgment. This is the point in a case, pre-trial, when the defense moves to have the case dismissed by a judge for lack of evidence. The majority held that the plaintiff's testimony in such cases was always enough to overcome the summary judgment motion and move the case to trial. Alito disagreed, saying that some employment discrimination cases required a higher standard of proof from the person claiming discrimination.
Opinion Excerpt: "If the majority had merely said that, under the circumstances described above, a defense motion for summary judgment or judgment as a matter of law must generally be denied, I would agree. When a plaintiff makes out a prima facie case and there is sufficient evidence in the record to permit a rational trier of fact to find that the employer's explanation is untrue, a defense motion for summary judgment or judgment as a matter of law should usually be denied. But not always, as the majority contends.

In my view, the correct test is the following: a defense motion for summary judgment or judgment as a matter of law should be granted when the evidence in the record could not persuade a rational trier of fact that intentional discrimination on the ground alleged by the plaintiff was a determinative cause of the challenged employment action.

This does not mean that a plaintiff, in order to reach the trier of fact, must always prove 'pretext plus,' i.e., that the plaintiff must always produce some evidence in addition to what is necessary to establish a prima facie case and to show that the employer's explanation is pretextual. On the contrary, in most cases, such additional proof is not needed. But I disagree with the majority that proof of the elements of the prima facie case and proof of pretext are always enough."

The Associated Press contributed to this report.

He is bright, precedent driven, procedure driven, firm but not rude in a "Scalito" way, and he has a sense of fairness in terms of religion. I am concerned about his environmental stances due to the fact that he appears to be a "State's Rights" devotee. In my opinion, only Federal Law can protect the environment.

I look forward to strong political debate and wrangling of his past decisions in the Senate Judiciary Committee. Difficult questioning will afford all of us more information to determine whether this is Alito or Scalito?!

P.S. I am especially encouraged by, tongue in cheek, the Pitt News decision. I am a Pitt Alum. An additional drawback to Judge Alito is that he is a Philadelphia Phillies Fan...tongue in cheek.

Is Alito a Scalito?

As proud as I am as an Italian American, it is much more important to look at Judge Alito's decisions as a federal judge than to disparage him as an unyielding, acerbic Scalito!

Let's look at the Casey decision. Judge Alito favored that regulations on abortion rights as not being an undue burden. While he supported this decision that required a woman to notify her husband, he went to great lengths to support the "State's Rights" legislative question here, and he showed understanding to the difficulties that women will face in these circumstances.

Quoting from Wash. Post 11/1/05,

They (the other judges involved in the Casey decision) noted that most women seeking abortions were unmarried, and thus unaffected by the provision, and that among married women, most chose to involve their husbands in the abortion decision. But for those married women who feared the consequences of telling their husbands, the two judges said, the burden was indeed severe and failed to meet the test. Judge Alito disagreed. The number of women who would be adversely affected by the provision, admittedly small, was unknown, he said, and the evidence of likely impact was insufficient to provide for striking down a new law on its face, before its impact could be tested and demonstrated. "I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women," he wrote.
Judge Alito's dissenting opinion went on to note that "needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of this provision is a matter of grave concern." But the Pennsylvania legislature took that concern into account, he said, in writing into the law an exception for a woman who "has reason to believe that notification is likely to result in the infliction of bodily injury upon her." Further, he said, the law would be "difficult to enforce and easy to evade," because it required no proof beyond a woman's word that she had notified her husband. The provision survived his understanding of the undue burden test, Judge Alito said, adding that "the Pennsylvania legislature presumably decided that the law on balance would be beneficial" and "we have no authority to overrule that legislative judgment, even if we deem it 'unwise' or worse."

What bothers me more about the Casey Decision is that the law requires a 1) 24 hr waiting period, and 2) counseling from both sides of the issue. I personally believe that both regulations should be a women's perogative before choosing to abort, but mandating it by law is a breach of privacy.

Additionally, Judge Alito is a strict constructionist. He upheld the 11th Amendment is protecting States from being sued by former employees with regard to the Family Leave Act. Also, he supported the purchasing of machine guns within the Commonwealth of Pennsylvania due to the fact that the case was argued as an "Inter State Commerce" issue for which Judge Alito did not believe the issue had any standing.

Let us review some of his legal opinions. These summations were compiled by NPR.

On Abortion:
Planned Parenthood v. Casey, 1991
Alito had the lone dissent in the 1991 case of Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.
The U.S. Supreme Court in 1992, in a 6-3 ruling, struck down the spousal notification requirement, but Chief Justice William Rehnquist quoted from Alito's opinion in his dissent.
Opinion Excerpt: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion."
The 1992 Supreme Court Ruling, citing Alito.
----------------------------------------------------
Planned Parenthood v. Farmer, 2000
In 2000, Alito joined the majority that found a New Jersey law banning late-term abortions unconstitutional. In his concurring opinion, Alito said the Supreme Court required such a ban to include an exception if the mother's health was endangered.
Opinion Excerpt: "I do not join Judge Barry's opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court's decision in Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.... The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother."
Read the 'Planned Parenthood v. Farmer' Ruling
----------------------------------------------------
On Religion:
Fraternal Order of Police v. City of Newark, 1999
The 3rd Circuit ruled 3-0 that Muslim police officers in the city can keep their beards. Previously, the police had made exemptions in its facial hair policy for medical reasons (a skin condition known as pseudo folliculitis barbae) but not for religious reasons.
Opinion Excerpt: "We cannot accept the department's position that its differential treatment of medical exemptions and religious exemptions is premised on a good-faith belief that the former may be required by law while the latter are not."
Read the 'Fraternal Order of Police v. City of Newark Ruling'
----------------------------------------------------
ACLU v. Schundler, 1999
In 1999, Alito was part of a majority ruling of the 3rd U.S. Circuit Court that freed Jersey City, N.J., from an earlier court ruling that had blocked the city from erecting a holiday display at City Hall. The court held that the display did not violate the establishment clause of the First Amendment -- the clause interpreted as a call for the separation of church and state -- because the city had modified its original display of a creche and a menorah to include a Frosty the Snowman, Santa Claus, red sleigh and a banner hailing the importance of diversity.
Much of the argument in this case came down to the relative prominence of the secular symbols in the display as compared to the religious symbols.
Opinion Excerpt: "With the possible exception of this factor, however, we see no reasonable basis for distinguishing the modified Jersey City display from the display upheld in Lynch. The plaintiffs and our dissenting colleague suggest that the cases can be distinguished on the ground that in the modified Jersey City display 'Santa Claus and Frosty the Snowman clearly do not constitute separate focal points or centers of attention coequal with the Menorah and the Nativity Scene,' Appellees' Br. at 14, but we see no basis for this distinction. Appendices A and B to this opinion, which depict the modified displays on both sides of City Hall in Jersey City, speak for themselves. In the modified display on the right, the sleigh is just as much a focal point as the figures in the nativity scene. And in the modified display on the left, the tree is just as much a focal point as the menorah."
Read the 'ACLU v. Schundler Ruling'
----------------------------------------------------
On Freedom of Speech:
The Pitt News v. the Attorney General of Pennsylvania, 2004
In July 2004, the 3rd Circuit Court ruled that a Pennsylvania law prohibiting student newspapers from running ads for alcohol was unconstitutional. At issue was Act 199, an amendment to the Pennsylvania Liquor Code passed in 1996 that denied student newspapers advertising revenue from alcoholic beverages.
Alito said the law violated the First Amendment rights of the student newspaper, The Pitt News, from the University of Pittsburgh.
Opinion Excerpt: "If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment."
Read the 'Pitt News v. the Attorney General of Pennsylvania' Ruling
----------------------------------------------------
On Sex Discrimination:
Sheridan v. Dupont, 1996
In 1996, Alito filed a partial dissent in the sex discrimination case of Sheridan v. Dupont. Barbara Sheridan, a former employee of the Hotel du Pont, filed an action under the Civil Rights Act of 1964 claiming that she had not been promoted because of her gender. She also claimed in her filing that the hotel had retaliated against her when she complained about sex discrimination.
Alito's primary disagreement with the majority in this case was over the issue of summary judgment. This is the point in a case, pre-trial, when the defense moves to have the case dismissed by a judge for lack of evidence. The majority held that the plaintiff's testimony in such cases was always enough to overcome the summary judgment motion and move the case to trial. Alito disagreed, saying that some employment discrimination cases required a higher standard of proof from the person claiming discrimination.
Opinion Excerpt: "If the majority had merely said that, under the circumstances described above, a defense motion for summary judgment or judgment as a matter of law must generally be denied, I would agree. When a plaintiff makes out a prima facie case and there is sufficient evidence in the record to permit a rational trier of fact to find that the employer's explanation is untrue, a defense motion for summary judgment or judgment as a matter of law should usually be denied. But not always, as the majority contends.

In my view, the correct test is the following: a defense motion for summary judgment or judgment as a matter of law should be granted when the evidence in the record could not persuade a rational trier of fact that intentional discrimination on the ground alleged by the plaintiff was a determinative cause of the challenged employment action.

This does not mean that a plaintiff, in order to reach the trier of fact, must always prove 'pretext plus,' i.e., that the plaintiff must always produce some evidence in addition to what is necessary to establish a prima facie case and to show that the employer's explanation is pretextual. On the contrary, in most cases, such additional proof is not needed. But I disagree with the majority that proof of the elements of the prima facie case and proof of pretext are always enough."
Read the 'Sheridan v. Dupont' Ruling
The Associated Press contributed to this report.

He is bright, precedent driven, procedure driven, firm but not rude in a "Scalito" way, and he has a sense of fairness in terms of religion. I am concerned about his environmental stances due to the fact that he appears to be a "State's Rights" devotee. In my opinion, only Federal Law can protect the environment.

I look forward to strong political debate and wrangling of his past decisions in the Senate Judiciary Committee. Difficult questioning will afford all of us more information to determine whether this is Alito or Scalito?!

P.S. I am especially encouraged by, tongue in cheek, the Pitt News decision. I am a Pitt Alum. An additional drawback to Judge Alito is that he is a Philadelphia Phillies Fan...tongue in cheek.