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November 6, 2005 - Morning Call (PA)

Most Alito Dissents More Conservative Than Majority Opinions

Study Shows He Tends To Defer To Judgment Of Police, Judges, Juries

By Adam Liptak

Return to Drug War News: Don't Miss Archive

Judge Samuel 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 his more than 60 dissents over 15 years on the 3rd U.S. Circuit Court of Appeals, a relatively liberal court, Alito often took issue with majority 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.

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 Alito does not follow that pattern: he dissented in four 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 U.S 9th U.S. Circuit Court of Appeals, in San Francisco.

Cass Sunstein, a law professor at the University of Chicago, reviewed 41 of Alito's dissents and said he was 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," Sunstein wrote in an e-mail message.

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

One theme that runs through 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," 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."

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.

Alito acknowledged that it was possible that this 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. 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 very sick brother, Alito objected. He said that the decision of the Board of Immigration Appeals, or BIA, 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 BIA's place and weighed the relevant factors for itself - apparently in accordance with its own views of drug and immigration policy," Alito wrote. "I cannot endorse this approach."

Federal courts hear relatively few personal injury cases, but 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. Alito agreed that was a mistake but said the error was harmless.

But in other injury cases, 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 needing a liver transplant.

The doctors "now argue," 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. 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 - Alito sided, in studied, dry terms, with Mylanta II.

The characterization, Alito wrote, "is not literally false with respect to liquid ESMP because liquid ESMP is superior to liquid Mylanta II at neutralizing acid in the laboratory. But as the district court found, ESMP 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 Alito's views. But that case was the exception; in three other cases in which Alito dissented, the court adopted his views.

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