All Trees, No Forest: The Strange Logic of Sam Alito

Nov 16, 2005
(REVISED: 11/17/05 10:40 am PST)

A BAGnewsNotes Character Snapshot:

When it comes to Sam Alito, is the problem just a political issue, or is it also a psychological one?

If this photo is "obtuse," could it capture the rather odd judicial disposition of our Supreme Court nominee?

For some reason, Sam Alito and his judicial style seems to defy understanding. In many ways, he seems classically conservative. Other times, he seems libertarian or just contrarian. If he has a tendency to take an opposing view, however, the position he takes often resists any clear theoretical or ideological pattern -- or explanation.

When you look more closely, the main theme in Alito's decisions is the tendency to be overly "technical." In fact, if there is anything clear and consistent about him, it's how torturously difficult his dissenting arguments are to explain.

To get a sense of this, you need look no further than his controversial 1991 opinion in Planned Parenthood v. Casey (in which Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before having abortions.) In that case, it's not so much his position as his reasoning that strikes a strange chord. Alito argued that many of the potential reasons for an abortion, such as "economic constraints, future plans, or the husbands' previously expressed opposition . . . may be obviated" if a women simply sat down and had a discussion with her husband about it first.

Even the conservative Red State blog (link) suggests that Alito's dissent lacks a discernible ideological, moral or philosophical basis. Instead, as the blog concludes, the opinion was "esoteric." Lawyers, Guns and Money (link) states it a little more bluntly, concluding that Alito's reasoning in the case was odd, illogical -- even bizarre.

Once you take notice of Alito's failure of logic (without automatically trying to overlay a reasonable explanation on top of it), examples start to pop up all over. A recent overview in the LAT elaborates the tendency. As the article states:

"Observers note that Alito's opinions are often narrow, turning on points that might not address the larger question in a case."
The Times cited a 1996 workplace sexual harrassment case in which Alito ended up on the opposing end of a 10-1 Third Circuit Court ruling. (Another suggestion that Alito's behavior is not just ideological is that eight of the ten members in the majority were Republican appointees.) The majority opinion was based on a Supreme Court opinion based on the nature and quality of eyewitness testimony. As the lone holdout, Alito fashioned an argument around the opinion that the majority had made it too hard for the employer to win the case.

In looking for an ideological explanation for the judge's position, The Times assumed that Alito's dissent was based on a conservative bias against plaintiff's rights. Interviewing "a senior official of the Justice Department" however, The Times was told that no overarching legal philosophy was involved. Instead, according to the official, "the clash between Alito and the court majority ... was over a technical legal point on the burden of proof."

The examples just keep coming. Perhaps the most damning one, though, involved a case outlined by CNN.com in an article titled "Bush's new nominee: Not always on the same page as Scalia" (link) involving a minor Social Security case in 2002.


Again, because CNN was looking at the ruling for what it did or didn't say about Alito's politics, it failed to pick up on what it had to say about Alito himself. Here's the key section of the article:

In that [Social Security] case, Alito argued passionately with other members of the 3rd Circuit Appeals Court that a disabled woman, Pauline Thomas, should be granted benefits because she had been laid off from her job as an elevator operator and could not find a new job since the position of "elevator operator" had virtually disappeared from the economy. A lower court had ruled that a narrow and technical reading of the Social Security statute did not entitle Thomas to benefits. Alito called this result "absurd" and overrode the objections of several of his colleagues and convinced the full 3rd Circuit to overturn the lower court decision.

Alito's passion didn't move the Supreme Court, however, which overturned his decision in 2003. In a pointed rejection of Alito's opinion -- accusing him of "disregarding" basic grammatical rules for interpreting the law -- the Supreme Court fell back on the narrow and technical reading and denied Thomas her Social Security benefits. The author of this stinging rebuke to Alito? Justice Antonin Scalia.
For the sake of argument, let's say the conservative Alito isn't the kind of doctrinaire ideologue the left fears or the right presumes him to be. But maybe that's beside the point. If even Scalia thinks Scalito lacks a firm handle on the basic grammar of legal interpretation, how qualified is the nominee based strictly on his capacity for logical reasoning?

(image: Doug Mills/The New York Times. November 16, 2005. Washington. The New York Times. p.A14)

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