For criminal defense lawyers, Supreme Court decisions are big things. What seems to others like a smallish change in the law, one way or another, can mean thousands of people getting orange jumpsuits rather than “welcome home” parties. Sure, it depends on lower court judges actually knowing and following the law, but that’s a story for another day.
Linda Greenhouse makes a significant point in her New York Times column about no one’s favorite justice, Sam Alito. Sam who? Well, of course we lawyers know all about him, right? Right? Well, at least criminal defense lawyers know that the former Third Circuit judge, former United States Attorney for the Garden State, is not our friend. Unlike Nino Scalia, who occasionally allows his textualist constitutional interpretations to work us a mitzvah, Sam’s not the sort of judge to ever cut a defendant a break. It’s a given.
After Justice Samuel A. Alito Jr. took his seat on the Supreme Court in January 2006, replacing Justice Sandra Day O’Connor, the court for the first time in its history was composed entirely of former federal appeals court judges. Justice Elena Kagan’s arrival in 2010 changed that; the former Harvard Law School dean had never been a judge. But the concentration of former judges is striking and, as Chief Justice John G. Roberts Jr. described it late last month, “an historical anomaly.”
Almost hidden within that opening paragraph, focused on the last job before appointment to the Supremes, is an oft-overlooked detail. Sam Alito took Sandra Day O’Connor’s seat. With it came her vote.
For obvious reasons, we tend to focus on the justices who either speak the loudest or are the least predictable. Justice Kennedy tends to be the swing vote in the many 5-4 opinions that change the course of the law, and in some respect, is a one-man branch of government. We have the conservative wing and the liberal wing, though the latter has proven less reliable than the former. But rarely do we give much thought to the fact that if Sandra Day O’Connor had stuck it out for a few more years, or even John Paul Stevens or David Souter, the entire dynamic of the court, and hence the law, could be fundamentally different.
Consider what might have changed if the conservative block of four justices was cut to three. In almost every case before the Supreme Court, there are excellent legal arguments, well-grounded in logic and reason, that are ultimately decided on policy. Nobody ever says that the real reason why we engage in the irony of letting cops break the rules so we can punish others for doing the same thing is based on a policy perspective that we prefer to cut cops a break. But that’s all it comes down to.
As far as I can tell from his résumé, Samuel Alito, since his graduation from law school, has never cashed a paycheck that wasn’t issued by the federal government. He has been a law clerk, a lawyer in the Justice Department, a federal prosecutor, and an appeals court judge. In federal employment, salaries are set by law and lines of authority are clear to all.
Greenhouse speaks to the experiences that go into a person’s thinking, a lifetime of service to a cause that informs him that the police, while less than perfect, are a better bet than the criminals. There is a certain ease to appointing justices who have spent their careers getting public paychecks. Same for justices whose checks bore a University’s logo in the corner. They lived clean, pure lives without any of the dirty work that provides fodder to the opposition. They did as they were told, following the proscriptions of their superiors and the law as it was handed to them.
That Justice Sam Alito never met a criminal deserving of his concern comes as no surprise. All he knows of criminals is they’re the people he spent his life putting in prison for the protection of society. To ask him to expand his point of view is to ask him to see his career as wasted and misguided. He trusted agents as a prosecutor, and trusts them as a judge. He was disgusted by defendants as a prosecutor and is disgusted by them as a judge. What else could he think?
But Sam Alito has a vote, one of nine that dictates the course of American law. HIs vote counts just as much as Scalia’s or Ruth Bader Ginsburg’s. Every time a 5-4 decision comes down, his vote is one that makes Justice Kennedy’s vote matter. If there was no Sam Alito on the bench, then perhaps close calls would go the other way. Maybe not, but maybe.
That’s how fragile the law is, and how insignificant the role of reason in decisions that ruin lives and families. A 5-4 decision doesn’t mean that the four on the losing side are irrational, ignorant crazies. It means only that they were one vote shy of changing the law. And that may mean that a thousand, ten thousand, maybe more, American families are changed forever, all because the winning choice garnered one vote more than the losing choice as a matter of nine people’s policy views.
It’s an unacceptably thin thread for a nation as large and diverse as the United States of America to base its criminal justice system on. But since this is the way we do things in our exceptional way, we can chalk it up as reasonably to Sam Alito as anything else. It’s not like we didn’t know exactly what we were getting in Sam when President George W. Bush appointed him in 2005:
[Sen. Jeff] Sessions [R-AL] then allowed Alito to give his opinion on the case involving the strip search of a ten-year-old girl (Doe v. Groody) that opponents had highlighted as showing what they viewed as Alito’s extreme deference to authority (in this case the right of the police to interpret a search warrant for a suspected drug dealer’s premises as authorizing them to strip-search the man’s wife and daughter).
Senator Sessions also highlighted Alito’s ruling in favor of abortion rights in at least one case.
In a 58-42 vote, with only one Republican, Lincoln Chafee of Rhode Island, breaking ranks, Sam Alito was confirmed as an associate justice of the Supreme Court of the United States. And if there was no open seat on the Court that year, the law would be different. For all our deep thought and analysis of the Supreme Court’s opinions, it’s really that fragile a system.