Alito's First Vote

February 2, 2006 12:25 PM

Alito's First Vote.In his first significant act on the Supreme Court, Justice Alito splits with his conservative colleagues, and votes to refuse to let Missouri execute a death-row inmate contesting lethal injection. You can read the (very short) order on page four of yesterday's order sheet [pdf]. More commentary at SCOTUSblog, and discussion of Alito's approach to the death penalty is available at Sentencing Law & Policy.
posted by monju_bosatsu (38 comments total)

Is this a sign that he will not be what people expect, an aberration, or first day on the job cautiousness? Time will tell, I suppose.
posted by Falconetti at 12:27 PM on February 2, 2006

I bet this is just one of those things to get us all to let our guards down.

Then, in a year or two, he will be all like, "SIKE! ABORTION ILLEGAL! MUHAHAHAHA."
posted by wakko at 12:30 PM on February 2, 2006

Given that he's a Catholic, I don't know that this is terribly surprising. Many conservative Catholics are anti-abortion and anti-death penalty. If anything, it's a little encouraging that he's at least consistent in his beliefs.
posted by EarBucket at 12:33 PM on February 2, 2006

Also, I didn't mention this in the post, but this vote is in the context of the new controversy over lethal injection. Last week, the Supreme Court decided the hear a case regarding the constitutionality of lethal injection under the Eighth Amendment. Some states have decided to stay executions pending a decision in that case, while other states want to move forward. The Supreme Court already allowed Indiana to execute one prisoner last week, before Alito was confirmed, and this order denying Missouri's request to lift a stay of execution may signal a change in the Court's attitude given the mess it's gotten itself into. I wonder if Alito's participation explains the difference in outcomes between the Indiana case and the Missouri case?
posted by monju_bosatsu at 12:36 PM on February 2, 2006

Wait, he's Catholic? Damn, what was I worried about?
posted by pmbuko at 12:37 PM on February 2, 2006

Thanks, monju.
posted by Rothko at 12:45 PM on February 2, 2006

Alito's first significant SCOTUS act isn't a significant one--it's not really even a stay, is it? They're still going to execute the guy, aren't they?
posted by bardic at 12:49 PM on February 2, 2006

Well, so much for him! Onward, to the next lightning rod of our collective paranoia. In the future, everyone will be hated for fifteen minutes.
posted by slatternus at 12:50 PM on February 2, 2006

I don't hate Alito--he's just the water boy. It's Roberts I'm worried about (and the cardiopulmonary conditions of the SCOTUS' remaining non-activist justices).
posted by bardic at 12:54 PM on February 2, 2006

Bardic, who do you consider to be the non-activist justices?
posted by Pontius Pilate at 12:55 PM on February 2, 2006

(Sorry, this should have been included with the above post - also, how do you define an activist / non-activist justice?)
posted by Pontius Pilate at 1:01 PM on February 2, 2006

I'm just saying this doesn't mean he's ripping his mask off to reveal that he's actually Hugo Chavez in disguise. He's still a scary-ass conservative, it's just not that surprising to me that his opinions on this particular issue don't necessarily toe the party line.
posted by EarBucket at 1:02 PM on February 2, 2006

Alito made his first poopie! Gather 'round, everyone.
posted by deadfather at 1:07 PM on February 2, 2006

Huh....go figure.
posted by Smedleyman at 1:11 PM on February 2, 2006

It was a 5-3 vote without him. His vote made no difference. Therefore, he can appear to be moderate without really affecting anything if he chooses to.
posted by flarbuse at 1:27 PM on February 2, 2006

There's a provision in the Patriot Act renewal that makes Gonzales the arbiter of whether it even can go to the courts.
posted by amberglow at 1:34 PM on February 2, 2006

...But tucked away in the pending renewal of the USA Patriot Act, the nation's controversial law to fight terrorism, is a provision inspired by Spears. Sen. Jon Kyl, R-Ariz., inserted language that could make it harder for state death-row inmates to appeal cases in federal court.
The provision is one of a handful that neither the House nor the Senate has voted on but that Republican lawmakers crafted during closed-door negotiations last year after Democrats had been excluded from the talks.
...The death-penalty changes would make it easier for states to benefit from faster federal appellate procedures in capital-punishment cases. Under a law that passed in 1996, states that take steps to ensure that poor murder defendants are represented by competent counsel can ask for a fast-track system in which inmates have shorter deadlines to file appeals.
Under current law, federal courts of appeal decide whether states can speed processing capital cases. Kyl's change would give that power to the U.S. attorney general. ...
posted by amberglow at 1:37 PM on February 2, 2006

Pontius Pilate: I can't speak for Bardic, but from my POV it appears that Scalia and Thomas tend to be more activist, in the sense of "manipulating the law to produce an outcome they desire" than the others. But, my POV is that of a person opposed to most of their decisions, so obviously I'm biased.

Really "activist judge" is just another way of saying "judge who makes rulings I disagree with". I really doubt any of the Supremes goes into a case looking at nothing but legal prescident, because prescident can be found to agree with just about anything. They have their desired outcome and try to find justificiation for that outcome. Scalia and Thomas just seem, again from my POV, to be more eager than the others to make their desired outcome the same as the desired outcome of the current administration.
posted by sotonohito at 1:49 PM on February 2, 2006

Therefore, he can appear to be moderate without really affecting anything if he chooses to.

Right, because now that he's been confirmed to a lifetime appointment on the Supreme Court, and presiding with he fellow Justices over weighty issues like the constitutionality of the death penality, Alito's number one concern is making sure the blogosphere thinks he's moderate.
posted by monju_bosatsu at 1:49 PM on February 2, 2006

Sotonohito,

I do like your definition of activist judges as those who make rulings that we happen to disagree with. That's quite apt.

I would probably argue that while Scalia is indeed activist, Thomas is much less so. That is not to say that I agree with more of Thomas' opinions than I do with those of Scalia - far from it. The reason I say that is that Scalia has shown a ready willingness, time and time again, to depart from his self-proclaimed pursuit of originalism / textualism for the sake of pragmatic decisions (perhaps most strikingly in Raich). Thomas, on the other hand, while subscribing to a number of doctrines that I simply can't stomach (particularly his vision of a strong executive branch largely unencumbered by checks and balances), at least appears to be consistent in his reasoning.
posted by Pontius Pilate at 1:58 PM on February 2, 2006

Oh I agree lethal injection is far too cruel and unusual. Much kinder to gang rape him, slash his throat and stab him to death while in a trunk of a car.
posted by DirtyCreature at 3:13 PM on February 2, 2006

Well, he's a catholic, isn't he? Even Bill O'Riley is against the death penalty, and opposition to the death penalty is a part of the "culture of life" as defined by pope John Paul II, who came up with it.

Just pointing out that this is not nessisaraly a good thing for pro-choice people.
posted by delmoi at 3:15 PM on February 2, 2006

Oh I agree lethal injection is far too cruel and unusual. Much kinder to gang rape him, slash his throat and stab him to death while in a trunk of a car.

You mean the guy did something bad? There's a suprise. What's your point?
posted by delmoi at 3:18 PM on February 2, 2006

Actually I don't believe in state-sanctioned murder. I would much prefer a P2P model based on a point system. You lose big points if you rape and murder a 15 year old girl who was just waiting for a bus. But you lose hardly any if you use someone with very few points left as target practice.
posted by DirtyCreature at 3:26 PM on February 2, 2006

Aren't the three conservatives he "split" with also Catholic?
posted by aaronetc at 4:35 PM on February 2, 2006

Pontius Pilate: Possibly. However, "originalism" is, again from my POV, just the Conservative equivilant of the Liberal "living Constitution" idea. It isn't as if its actually possible for them to know the original intent of the authors of the Constitution. I always get this image of Rhenquis et al using a Ouija board to try and contact the departed spirits of Jefferson, Franklin, etc.

Besides, the intent of the framers isn't important. What is important is the words on the Constitution. Take the 14th Amendment, for example. The "original intent" crowd will tell us that it can't possibly be applied to granting equal rights to homosexuals because it was intended to grant equal rights to blacks. I say BS. It doesn't say "oh, and this only applies to blacks", it just says: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." You read what it says and its obvious that it grants homosexuals have right to marry, women the right to vote, etc. I don't *care* what the people who wrote it wanted it to apply to because a) the world today isn't the world in 1868, b) they aren't around to ask, and c) we don't apply that standard to any other legal document.

Sorry. I tend to rant when I hear the term "originalism". I know you weren't advocating it.

As for Thomas, you may be correct, but I'm inclined to think that he'll go against his so-called "views" as soon as they conflict with the desires of George W. Bush. It just happens that his legal philosophy hasn't need to change to work with Bush. The word "fink" was designed for people like Thomas.
posted by sotonohito at 4:49 PM on February 2, 2006

AFAIK, Thomas isn't actually Catholic, but he did go to Holy Cross. I think his wife is Catholic, though. At any rate, it's not that uncommon for conservative Catholics to ignore the "death penalty" aspect of the culture of life encyclical. American Bishops tend to downplay that aspect, as well as the other four that aren't abortion.* Mmm...love the mysteria meat in the Catholic cafeteria.

Oh, and yeah, "originalism" is a bunch of revisionist BS. So is the concept of a "culture of life"

*As opposed to liberal (read: lapsed) Catholics, who tend to agree with everything but the birth control parts.
posted by thecaddy at 5:05 PM on February 2, 2006

Besides, the intent of the framers isn't important. What is important is the words on the Constitution.

So if you want to change the Constitution, all you have to do is change the common usage of the words therein?
posted by Kwantsar at 6:59 PM on February 2, 2006

What is important is the words on the Constitution.

That begs the question, doesn't it? How do we figure out what those words mean?
posted by monju_bosatsu at 7:10 PM on February 2, 2006

A round of responses and comments:


So if you want to change the Constitution, all you have to do is change the common usage of the words therein?

I would suspect that it is actually easier to get a Constitutional amendment passed than it is to somehow "change the common usage of the words therein." You seem to imply that it's very easy. How exactly would you go about changing the meaning of the words contained in "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people," for example, so that the resultant change actually leads to the above meaning something very different?


That begs the question, doesn't it? How do we figure out what those words mean?

That pretty much depends on who you ask.

There’s good reason to think that a number of founding fathers et al. had no problem referring to intent, purpose, and other terms that the modern originalists find distasteful. John Jay, writing as Publius in the Federalist Papers, for example, referred to the “plan of the convention,” the “tenor of the instrument,” and the “intent of the Constitution” in #82. Evidence of similar referrals can be found in records of debates between Madison and Hamilton.

So you could, on one hand, simply sit down and read the Constitution relying only on your knowledge of common usage of the language. On the other hand, you could do that and also consult a number of extrinsic sources such as records from the Philadelphia Convention, Federalist Papers, and constitutional debates to see if your "common-sense" interpretation corresponds to what the drafters seem to had in mind when they wrote the language.



However, "originalism" is, again from my POV, just the Conservative equivilant of the Liberal "living Constitution" idea. It isn't as if its actually possible for them to know the original intent of the authors of the Constitution.

Well...It's not always possible to know the original intent of the framers, but in certain cases, it does seem that there is at least a broad concensus on specific points. There is certainly no such clarity and unanimity on many contentious issues, which is why it's possible to be a originalist and arrive at wholly differing outcomes while still claiming historical evidence. The more proper criticism, as you note later in your post, is that we no longer live in the 19th century, and there is certainly good reason to advocate an adaptation of the Constitution to the modern world, as it were.


As for Thomas, you may be correct, but I'm inclined to think that he'll go against his so-called "views" as soon as they conflict with the desires of George W. Bush. It just happens that his legal philosophy hasn't need to change to work with Bush. The word "fink" was designed for people like Thomas.

As far as I know, Thomas has always subcribed to the view of a powerful executive branch, which is more than a little ironic, since this is a radical departure from the standard originalist line. If there is one thing the framers agreed on, it's that they did not want an overly powerful central leader. This is also why, by the way, the current Article II defense of the NSA program is so topical, and it will definitely be interesting to see the outcome when it inevitably makes it way to the Court. I'm hopeful for a 7-2 decision with Alito and Thomas in the minority, but Scalia could easily join them.
posted by Pontius Pilate at 7:33 PM on February 2, 2006

MetaFilter: everyone will be hated for fifteen minutes.
posted by Richard Daly at 9:26 PM on February 2, 2006

Anti-death penalty catholic liberal sleeper agent? Umm, ok. I didn't know we were supposed to hit the bowl before posting.

The question in this case has nothing to do with the validity of the death penalty but in manner in which it is carried out. Specifically, if the drugs the state of Missouri uses cause "excessive pain" before and during the lethal injection. A conservative votes to not lift a stay earned in a lower court. He's not exactly on the forefront of stripping Missouri of its ability to execute its inmates. The problem is the methodology, not the act.

Its no different than filing a complaint that the executioner's axe is too dull for the inmate's soft neck.

This is like saying Planned Parenthood v. Casey makes O'Conner anti-abortion.

Earbucket: Given that he's a Catholic, I don't know that this is terribly surprising.

Explain Scalia then.

Over at the Free Republic, mefi's evil twin, there's outrage that the motion also mentioned that race was an issue. Because we all know that race is never a factor in death penalty cases, especially in America's midwest.

Get your "Polymerase Chain Reaction Saved my Life" t-shirt at my cafepress.com store! Published by Kinkos!

Seriously though, I'm still surprised at the mental disconnect between being for a small and less powerful government and at the same time never seeing execution as a power the state should not have. Especially in light of how badly these cases are handled.
posted by skallas at 10:51 PM on February 2, 2006

Earbucket: Given that he's a Catholic, I don't know that this is terribly surprising.

Explain Scalia then.

Or Roberts. I didn't say all Catholics are against the death penalty. I just said that the fact that two of the five Catholics on the court may have actually listened to what the Pope had to say on the matter shouldn't shock anybody. Or, his vote may have been completely unrelated to his religious beliefs, which should be at least a little bit encouraging.
posted by EarBucket at 3:24 AM on February 3, 2006

A true "strict constructionist" should roll back every interpretation of the Constitution not specifically and explicitly stated.
There goes the pork barrel!
No more U.S. minted money!
Hypocrites I'd say.
"Strict constructionist" only when it suits their ideology.
Like Bush vs Gore. Think anyone would forget that one?
posted by nofundy at 6:22 AM on February 3, 2006

IMO, this decision does not reveal much about Alito's opinion regarding the death penalty. It was a procedural decision based on an awareness that the SCOTUS will rule on at least one appeal regarding lethal injection as cruel and unusual punishment in the next year. While his prudence in letting appeals continue until the court settles the issue is admirable, it is possible that he wants to remove any ambiguity in upholding the death penalty.

In regards to racism, at least one form of opposition to the death penalty is based on the fact that the problems with due process have not improved since the original SCOTUS ban on the death penalty in the early 70s. The decision on who gets the death penalty as opposed to 40-life is not based on the facts of the crime, but on the levels of bias, incompetence and malice in in the criminal court system where the case orginated.
posted by KirkJobSluder at 8:12 AM on February 3, 2006

A true "strict constructionist" should roll back every interpretation of the Constitution not specifically and explicitly stated... No more U.S. minted money!

I can't believe I'm doing this A strict constructionist would be in quite a pickle if he had to hear a case regarding minted money, with the Sixteenth Amendment being law, and all.
posted by Kwantsar at 9:12 AM on February 3, 2006

Kwantsar shot down my best John Birch imitation. :-(
posted by nofundy at 11:58 AM on February 3, 2006

Wakko, it's "psych," not "sike." As in I "psyched" you out. Derivative from psychology.
posted by WCityMike at 1:49 PM on February 5, 2006