When Alito Is Unbound: On Mining Judge Alito’s Judicial Record

handcuffs1.jpgAll eyes are now scrutinizing Judge Alito’s judicial record. His opinions are being mined for clues about where he stands on many key issues. The University of Michigan Law Library, for example, has posted an extensive collection of Alito’s opinions. But I’m wondering how much weight we should give an appellate court judge’s prior opinions in assessing what kind of Supreme Court justice her or she will be.

Court of appeals judges often sit in a very constrained position. They are constrained by the findings of fact and the issues raised on appeal at the district court level. They are also constrained by the precedent of their own court as well as that of the Supreme Court.

Following precedent by a higher court (and especially the Supreme Court) is a foremost imperative for appellate court judges. If they don’t, they’ll either be slapped down by the Supreme Court, and they will be viewed as lawless and derelict in the legal community.

But when a judge is transformed to justice, all of a sudden Supreme Court precedent becomes much less sacred. Justices can bend and twist the precedent; they can overrule cases; they can radically alter the direction of the law. What happens when an appellate judge is unshackled in this way?


It is easy to comb through Alito’s opinions and either like or dislike some of the legal conclusions he reached. But we must be careful to not just look for holdings where we simply like or dislike the results, as these may be mandated by existing law. We must look for opinions where Alito examines a question not squarely addressed by Supreme Court precedent. To the extent to which Alito departs from Supreme Court precedent (or inteprets it in manipulative ways), this can be telling. But cases where he just follows the dictates of the law — whether we agree or disagree with the outcome — don’t tell us much except that he was applying the law as he should have.

Of course, there are a number of federal court of appeals judges who are bold and creative in the way they shape the law. There are those who are very constrained and attempt to paint as closely within the lines set forth by the Supreme Court. With the indications thus far, Alito appears to be more in the mold of the constrained judge.

I doubt Alito will suddenly shift in temperament from being a relatively restrained judge to being one like Justice Scalia, who is far from shy in overturning precedent and taking the law in dramatically new directions. But we really can’t know for sure. Mining Alito’s judicial record may not tell us all that much, because he’s been following a very different set of rules with regard to precedent. What happens when the constrained judge becomes unbound? This is the important question to be pondering during the appointment process.

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3 Responses

  1. Dave! says:

    Good question… I’m no historian, but are there examples of any judges being appointed to the court and becoming more conservative? We hear about the “liberal traitors” all the time. Anyone get appointed from the left or center only to move more to the right?

  2. Matthew Dowd says:

    Maybe Byron White? He is sometimes referred to as conservative. For example, he dissented in Roe and Miranda, and he was appointed by JFK. Then again, it depends on what you mean by conservative (socially or original meaning).

  3. Plainsman says:

    Hugo Black is perhaps another example. Black, the original arch-New Dealer, eventually arrived at a distinctive, and impressive, brand of liberal textualism that led him to dissent from many of the Warren Court’s decisions in the 1960s.

    Black is my favorite liberal Justice, and I believe Frank Easterbrook recently claimed Black as one of his favorite judges of the 20th century.