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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