The Difference Alito Makes

For those of us waiting to see what effect the replacement of Justice O’Connor with Justice Alito would have on the Supreme Court, the last couple months have begun to provide some concrete evidence.

First, there was the Court’s decision in Gonzales v. Carhart, which upheld a federal law banning the abortion procedure known as “intact dilation and evacuation.” When the Court struck down a similar Nebraska law in 2000, Justice O’Connor wrote a concurrence in which she stated that the law was invalid because it did not include an exception to protect the life or health of the pregnant woman. The federal law did contain an exception to protect the woman’s life, but not her health, so it seems likely O’Connor would have voted to strike it down. Alito voted to uphold the law, and since the decision was 5-4, his vote in the case was decisive.

Second, the Court ruled 5-4 in Schriro v. Landrigan that a federal district court did not abuse its discretion in denying a habeas hearing to a death row inmate who claimed his lawyer had failed to present mitigating evidence at his sentencing trial. Alito joined the majority, and while it is not certain how O’Connor would have voted, there is some evidence suggesting the outcome might have been different if she were on the Court. Two years earlier, while Alito was on the Third Circuit, he rejected an inmate’s claim that his lawyer’s failure to investigate possible mitigating evidence violated his right to effective assistance of counsel. The Supreme Court overturned that ruling 5-4 in Rompilla v. Beard, with O’Connor joining the majority. Admittedly, the issue in Schriro was different than the issue in Rompilla – it focused on whether the inmate made a sufficient claim of prejudice to justify a hearing, not on whether the lawyer’s failure to introduce mitigating evidence fell below objective standards of reasonableness. But given this history – and O’Connor’s recent statements of concern about the quality of representation in capital cases – it is at least arguable that her replacement with Alito made a difference in Schriro.

Third, the Court ruled 5-4 in Ledbetter v. Goodyear Tire & Rubber Co., Inc. that Title VII permits employees to challenge pay disparities only if they filed a formal complaint with a federal agency within 180 days after their pay was set. The decision was written by Alito, and some commentators have argued that O’Connor would have voted the other way, given the implications of the ruling for women in the workplace. At the very least, it seems likely that O’Connor would have blunted the effect of the ruling with a fuzzy standard leaving open the possibility of challenges in some circumstances after the 180-day period.

Finally, the Court ruled 5-4 yesterday in Uttecht v. Brown against a death row inmate who claimed his trial judge erred by excluding a juror who expressed uneasiness with the death penalty but also said he would consider it in an appropriate case. Justice Kennedy’s majority opinion – which Alito joined – said federal courts should show special deference to trial judges in such cases because they are “in a superior position to observe the demeanor and qualifications of the potential juror.” It is unclear how O’Connor would have ruled in this case. During her early years on the bench, she wrote a number of opinions that made it harder for death row inmates (and other prisoners) to challenge their convictions and sentences. But in recent years, she has expressed concerns about the death penalty and the fairness of its application. It is arguable, though not certain, that she would have voted in the inmate’s favor, which would have changed the outcome in the case.

These are just four recent examples in which the replacement of O’Connor with Alito may have affected a Court decision and the shape of its doctrine. I would be interested to know whether readers agree with my assessment of these cases and whether they know of other cases in which Alito’s presence on the Court has possibly proved decisive. It might be a useful exercise to compile a list of these cases over the next few years as a way of demonstrating the significance of Supreme Court appointments. Alito and O’Connor are not all that far apart on the political spectrum, so if his replacement of her has a significant effect, one can only imagine what the replacement of, say, Justice Stevens with a Bush appointee would mean.