Analyzing Alito

The Washington Post has published an analysis of Supreme Court nominee Samuel Alito's decisions as a federal appellate judge. While I'm skeptical of the methodology, it does give an interesting overview of some of the cases that have come before him.

My objections to the analysis are that it looks at parties rather than law and continues with the media's basic assumption that an appellate judge charged with applying or anticipating Supreme Court rulings would rule exactly the same way when actually on the Supreme Court.

With that out of the way, a summary:

During 15 years as an appeals court judge, Supreme Court nominee Samuel A. Alito Jr. has been highly sympathetic to prosecutors, skeptical of immigrants trying to avoid deportation, and supportive of a lower wall between church and state...

Alito has taken a harder line on criminal and immigration cases than most federal appellate judges nationwide...

In civil rights cases, Alito has sided against three of every four people who claimed to have been victims of discrimination...

Still, in a few areas of the law, Alito's record resembles that of the average U.S. appellate judge. His decisions on First Amendment cases have been mixed. And when workers have sued for pay or benefits, he has agreed with them about half the time...

Overall, the analysis shows, Alito does not disagree with majority opinions more frequently than most federal appeals judges do in similar cases.

The article continues with various examples and statistics, but one case demonstrates the problems with the Post's methods:

In 1991, his was the sole vote siding with 228 Philippine seamen working on Kuwaiti oil tankers in the Persian Gulf who alleged that they deserved to be paid minimum wage under the Fair Labor Standards Act. It was around the time of the Persian Gulf War, and their ships had temporarily been reflagged under the U.S. flag because it was dangerous in that region for vessels from neutral countries.

The court majority ruled the sailors did not deserve the pay because they were outside U.S. waters and their ships were only temporarily reflagged. Alito countered that the legislative history of the labor law "makes clear that Congress intended for the minimum wage requirement to apply to all seamen on all American vessels."

While I can't comment on the intricacies of the Fair Labor Standards Act, I have extensively studied the issue of ships' flags. Under international law, a vessel reflagged under the U.S. flag becomes subject to U.S. law (this can even happen to some degree without reflagging). It seems strange to create a class of U.S. vessels that are not subject to U.S. law without a clear statutory exemption.

Overall, I'm encouraged by the overview of Judge Alito's decisions. I have a few ideas about why a judge might tend to rule for one type of party over another, but Chief Justice Roberts dealt with the issue best in his confirmation hearings:

If the Constitution says that the little guy should win, the little guy's going to win in court before me.

But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution.

In related news, an AP article suggests that "the Roberts court also has the potential to craft a consistent philosophy on business issues, something that several academics argue has been lacking in recent years since the departure of Lewis Powell in 1987." The main argument is that narrowly reading statutes benefits business. This could be true, but it's only a side effect. If we want far-reaching statutes, Congress, not the courts, should make them that way.

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