One year in, Alito 'his own man'

Over a year ago, Princeton took center stage in the national media and political scene when President Bush nominated New Jersey Court of Appeals judge Samuel Alito Jr. '72 to the Supreme Court. Pundits opposed to Alito's nomination were quick to associate him with Justice Antonin Scalia, the high court's conservative backbone, dubbing Alito "Scalito" in reference to the alleged similarity.

In the first 13 months of Alito's service on the Court, however, his votes and legal opinions have shown him to be an independent thinker — not "Scalito," but certainly conservative in many ways, with a legal philosophy that stresses the power of the executive branch but has at times diverged from the Court's conservative core.

When Alito was confirmed to the Court in January last year by a vote of 58 to 42, those who had opposed him in the Senate expressed dismay. "We can't afford to see the court's swing vote ... replaced with a far-right ideologue like Samuel Alito," Sen. John Kerry (D–Mass.) said at the time, referring to the moderate Justice O'Connor, whom Alito had been nominated to replace.

As groups on both sides of the political aisle rushed to lobby for or lambaste the nominee, Alito opponents pounced on his past membership in the Concerned Alumni of Princeton (CAP), charging that he shared the organization's conservative social outlook. The emphasis on CAP served as ammunition for Alito opponents' broader accusation that the nominee held far-right views, which they charged he would incorporate into his legal decisions if he were confirmed to the Supreme Court.

The group, which was formed during the 1970s and which Alito listed on a 1985 application for a job in the Reagan Justice Department, opposed affirmative action and the admission of women to the University.

'His own man'

"[Alito] is not a libertarian conservative, he is a big government conservative, which is what George Bush is," said Andrew Napolitano '72, senior judicial analyst for Fox News, former New Jersey Superior Court judge and friend of Alito since their Princeton days.

Napolitano distinguished his friend from Scalia, who tends to emphasize federalism and states' rights in his decisions, pointing to Alito's belief in big government as the impetus behind his decisions. "He's sided with government on every single case except one."

Napolitano said the exception was a unanimous decision in Holmes v. South Carolina to uphold a defendant's right to present evidence of another person's guilt.

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The differences between Alito's and Scalia's constitutional interpretations became apparent as soon as Alito took his seat to replace O'Connor. In his first decision on the Court, Alito weighed in on the opposite side of Scalia to uphold a lower court's stay of execution for Michael Taylor, a Missouri death row inmate convicted of rape and murder.

"[Alito's] going to form his alliances where he's going to form them," said Diane Weeks '75, a colleague of Alito's when she served as an assistant U.S. Attorney of New Jersey. "Sam Alito is his own man and is probably going to prove himself to be more conservative than Scalia."

Napolitano emphasized Alito's independence from Scalia. "He has been more conservative than Justice Scalia on criminal law issues and on other issues where there's been an ideological component," he said. Other than a blue-collar Italian-American heritage and ideologies "atypical of Italian intellectuals," Napolitano added, there is nothing "to demonstrate any peculiar alliance of the two."

Deference to Congress

One case in which Alito has voted in the minority was Hamdan v. Rumsfeld, in which the court found in June 2006 that military commissions to try Guantanamo Bay detainees were unlawful and violated the Geneva Convention. In his dissent to the 5-3 decision, Alito wrote, "I see no basis for the Court's holding that a military commission cannot be regarded as 'a regularly constituted court' unless it is similar in structure and composition to a regular military court or unless there is an 'evident practical need' for the divergence."

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Such a decision shows Alito's commitment to big government, Napolitano said. "He would defer to the executive branch as long as there is some argument to be made on behalf of it."

Jay Fahy, a former federal prosecutor who worked with Alito and now serves as a frequent criminal court commentator for numerous television stations, said Alito's background as a state attorney and federal appeals court justice enables him to make his own decisions independent of the other members of the court. "Unlike many of the people on the court, he has substantial criminal law experience," Fahy said.

Napolitano also noted the shift in political balance on the Supreme Court in the past year with Alito's replacement of O'Connor, long viewed as a moderate swing vote on the court. "His replacement has succeeded in changing this from the O'Connor court to the Kennedy court," Napolitano said, referring to Justice Anthony Kennedy, also viewed as a moderate swing vote. "Kennedy is the fulcrum between the four [justices] on the left ... and the four on the right."

But, analysts say, cases brought before the Supreme Court this year have not given Alito an opportunity to exercise much influence. "There were no really major precedent-setting cases in his first year," Fahy noted.

While he said Alito hasn't been in a position to define the scope of the court, Fahy predicted that Alito will show deference to past judicial decisions. "The one thing that Alito is going to follow is precedent," Fahy said.

Weeks noted that while Alito has voted against congressional statues, "he'll show more deference to Congress than Scalia or Thomas."

Such deference to legislative and judicial precedent will likely influence Alito's decisions on highly-politicized issues like abortion, Napolitano said. "I would expect that [Alito] will defer to the Congress on this," he said, "in part because of his Catholicism and in part of his pro-life views and in part because he normally does defer to the Congress."