Category Archives: Law: The Supremes

Alito In 1985 v. Alito in 2005

Posted on November 16, 2005 by Michael Froomkin

The man nominated to replace the first female Justice in US history isn’t just not a woman — he’s a man who was a proud member of “Concerned Alumni of Princeton”, a group formed to oppose the admission of women to that male bastion. (“Q: How many Concerned Alumni of Princeton does it take to change a light bulb? A: Six – One to change it, and five to sit around and talk about how good the old one was.”)

Now, this was back in 1972, a rather long time ago, and at a rather young age. So one might be tempted to draw a veil over the episode. But not Samuel Alito. It seems that then-Mr. Alito was still bragging about his anti-woman-at-Princeton membership in 1985, when applying for legal work in Meese’s Justice Department. (And it probably was a shrewd move, too. In any case, he got the job.)

In that same 1985 application, Alito made a point of stating that “I personally believe very strongly” that the Constitution doesn’t guarantee a right to abortion. Again, not alone likely to be a disqualification; many people believed that then, many do today, including some who would follow Casey‘s re-affirmation of Roe despite their personal beliefs.

What’s most troubling here is Alito’s explaining this ‘deep personal belief’ away when visiting when Senator Specter. He doesn’t say he’s changed in the intervening 20 years. He doesn’t say, personal beliefs don’t necessarily decide cases, personal beliefs then may not control legal decisions now — which would have left the issue open. (And he certainly doesn’t say he’s changed or grown in 20 years — that might startle the base.) Rather, today Judge Alito says that what he said 20 years ago should be ignored: “I personally believe very strongly” was just language used by “an advocate seeking a job.” What does that mean? He was lying? Puffing? Being parsimonious with the truth? But we should believe him now because he’s a judge seeking a much better job?

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Posted in Law: The Supremes | 1 Comment

Hamdan Cert Grant

Posted on November 7, 2005 by Michael Froomkin

Although I rather doubt that the law professors’ letter had much to do with it, I’m pleased to learn that the Supreme Court has granted cert. in the Hamdan appeal.

Posted in Law: The Supremes | 4 Comments

Circuit Justice Roberts’s Eleven-and-a-Half-Day-Gap

Posted on November 4, 2005 by Michael Froomkin

Did Chief Justice Roberts accidentally create grounds for reopening (and even rearguing) Banner v. United States?

Here’s the argument:

This case is an appeal decided today [Hat Tip to How Appealing for the link] by a panel consisting of Chief Justice Roberts, sitting as a Circuit Justice, and D.C. Circuit Judges Edwards and Rogers. Chief Justice Roberts is the judge formerly known as "Circuit Judge Roberts," who was originally assigned to hear the appeal in that capacity, along with Edwards and Rogers.

On September 29, 2005, Circuit Judge Roberts took the oath of office as Chief Justice of the United States. And we can only presume that at that point, if not before, he effectively resigned his commission as U.S. Circuit Judge for the District of Columbia Circuit. Indeed, the Federal Judicial Center website states, in its entry for "Circuit Judge Roberts," that Roberts’s "[s]ervice terminated on September 29, 2005, due to appointment to another judicial position."

On October 11, 2005, the Supreme Court issued an order assigning Chief Justice Roberts to be Circuit Justice for the D.C. Circuit. Under 28 U.S.C. § 43(b), "Each Court of Appeals shall consist of the circuit judges of the circuit in regular active service. The circuit justice and justices or judges designated or assigned shall be competent to sit as judges of the court." So, in plain English, Chief Justice Roberts was a member of the circuit at the time of the opinion—i.e., today.

The problem, however, is that Roberts does not appear to have been a member of the circuit, either as a circuit judge or as a circuit Justice, between the date he left the court (September 29) and the date of the circuit Justice assignment order (October 11). What’s more, it’s not clear how, when he "rejoined" the court, he also rejoined the panel. After all, the normal procedure on most circuits (and, we presume, the D.C. Circuit) when a vacancy arises is either to leave the third seat vacant since the two remaining judges constitute a quorum, or to randomly assign a third judge.

This may seem like pedantry, but it was this very kind of punctilio that forced the Supreme Court to vacate a whole slew of criminal convictions affirmed by an "improperly constituted" Ninth Circuit panel in Nguyen v. United States in 2003. In Nguyen, the Court held that the presence of a judge who was not a duly constituted member of the court was grounds to invalidate any decision in which he participated, even when the remaining two judges would have constituted a quorum and would have chosen the same outcome.

It is certainly possible that the proper order reassigning Circuit Justice Roberts to the original panel does exist, and was filed by the Clerk of the D.C. Circuit. We have been able to find no such order, however, on the D.C. Circuit’s website, and a cursory search of the PACER docket summary for Banner reveals none. If there was indeed no such order, it certainly appears as if the losing party has a good claim that the panel decision is voidable under Nguyen.

In a subsequent post (which we hope never to write), we’ll explain whether Chief Justice Roberts would have to recuse from the cert. petition from the reargument, since he would no longer be a member of the panel below.

[Co-authored by Michael Froomkin and Steve Vladeck for cross-posting on PrawfsBlawg and Discourse.net, as an unfortunate result of our offices being close together.]

Posted in Law: Constitutional Law, Law: The Supremes | 11 Comments

Alito Fact Sheet from PFAW

Posted on October 31, 2005 by Michael Froomkin

People for the American Way, a group that stands for traditional American values including civil liberties and equality has issued a ‘fact sheet’ on Judge Alito (or, read the summary fact sheet). The tenor of the report is summed up in the (somewhat shrill?) headline “Samuel Alito: Leading the Attack on Fundamental Legal Rights and Protections for All Americans”.

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Alito On Family Values

Posted on October 31, 2005 by Michael Froomkin

Angry Bear takes a look at an Alito decision on the Family and Medical Leave Act (FMLA), and reports that “All in all, my first foray into learning about Samuel Alito was not an encouraging one.”

Kash reports that Alito’s way-out-of-the-mainstream opinion was rejected by the Supreme Court, 6-3, in an opinion by Chief Justice Rehnquist. (I must confess, though, that I don’t recall that decision; I will (re)read it, and if I find anything that contradicts Kash’s analysis, I’ll update here.)

Update: The Alito opinion in question is rather conclusory on the key points, which may make it more or less awful depending on whether you are a glass half full or empty type person. And the Supreme Court opinion is not a direct review, but rather a review of later decision by the 9th Circuit. Thus Chief Justice Rehnquist’s opinion doesn’t directly engage Judge Alito’s, but does indeed reject the views he adopted.

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Alito, Take One

Posted on October 31, 2005 by Michael Froomkin

Three posts of interest by Eric Muller, who used to work (briefly) for Sam Alito: Sam Alito, As I Knew Him, It’s Alito, and The Alito Nomination and Gender Equality.

Posted in Law: The Supremes | 1 Comment