A Heart, No Matter How Small

To find Alito’s, take out your magnifying glass.

If he only had a heart

Judge Samuel Alito is being “misrepresented,” Sen. Orrin Hatch, R-Utah, rued this morning. Sen. Tom Coburn, R-Okla., expressed similar distress at the Democrats’ treatment of the Supreme Court nominee. “You’ve been unfairly characterized” as not caring about “the little guy, the weak and the poor,” Coburn clucked. Cue hand-wringing, wattle-shaking, and the recitation of a handful of cases in which Alito once found in favor of the downtrodden or luckless. “You stood up for the person seeking rights here and the Supreme Court overruled you. Oh my goodness,” Hatch said after sketching one case.

To be sure, these decisions are exceptions to the rule. If Alito ruled for black and disabled people and criminal defendants most of the time—or any significant fractionthereof—he wouldn’t have the conservative credentials that have led the right to embrace him without question. Still, aren’t Alito’s little-guy victories evidence that he’s as open-minded as he says he is, and maybe even reassuringly compassionate? Not so much.

Let’s start with Hatch’s first example this morning, Zubi v. AT&T. Madhat Zubi claimed he was fired because of his race. The trial court said that Zubi’s complaint was barred because he filed it after a two-year statutory deadline. In 2000, two appeals court judges agreed. Alito dissented from their ruling. He thought that Zubi’s case was governed by a four-year, rather than two-year, deadline, a standard that would have given Zubi “his day in court,” as Alito put it to the senators today.

But Alito’s dissent is about keeping the courtroom doors open only in an indirect sense. The judge differed with his colleagues in Zubi’s case over a dry-as-dust matter of statutory interpretation. And as a matter of methodology, if not result, Alito’s approach is solidly conservative. His colleagues, he said, imposed the two-year deadline “based on a snippet of legislative history.” Alito, on the other hand, stuck with his reading of the plain language of the statute. Animating his dissent is a Scalia-like mistrust of judges’ efforts to read the hearts and minds of Congress, and a preference for “the text, just the text.” The result of his analysis—that Zubi would have gotten to bring his case—isn’t the point. It’s the afterthought.

United States v. Kithcart concerns a police stop. About 10 minutes after learning of a robbery reportedly committed in the vicinity by two black men driving a black sports car, Officer Teresa Nelson of Bensalem, Pa., pulled over a black sports car driven by Jesse Kithcart, a black man. (Nelson couldn’t initially see the passenger in the car.) Nelson waited for backup then searched the car and found a gun. Alito and his colleagues found the search unjustified. “The mere fact that Kithcart is black and the perpetrators [of the robbery] had been described as two black males is plainly insufficient,” he wrote.

Right—plainly. Ruling for Kithcart wasn’t a hard call. It was a basic application of search-and-seizure law: The police have to have more to go on than race and proximity before they conduct a full-on search. Kithcart “was essentially a case of racial profiling,” Alito said at his hearing today.

But when the casewas before him, that didn’t end the matter for Alito. “The finding of no probable cause” for the search, he wrote, “does not end the inquiry.” Instead, he sent Kithcart’s case back to the district court to give the government another chance to show that Nelson had “reasonable suspicion” to stop and investigate. Judge Theodore McKee, one of Alito’s co-panelists in the case, dissented from the decision to send back the case. “The same testimony that requires us to reverse the district court’s determination that the government had probable cause also establishes that Officer Nelson did not have reasonable suspicion to stop and detain the occupants of the car,” McKee wrote. The prosecutors had come up with nary a shred of relevant evidence to justify Nelson’s decision the first time around—why give them another chance?

By giving the prosecution another shot in Kithcart, Alito followed his usually pro-government instincts. Of the scores of criminal and Fourth Amendment cases that Alito has heard, Robert Gordon wrote in Slate, “At least in my research, LexisNexis revealed exactly one case in which Alito protected individual rights more vigorously than colleagues.” And that case, as Gordon noted, was really a decision favoring not individual rights, but rather state sovereignty: United States v. Rybar, in which Alito would have thrown out a conviction for owning a machine gun on the grounds that Congress didn’t have the authority to regulate such guns.

To a sympathetic Hatch, Alito said today, “If anyone looks at the categories of cases I’ve voted on … they will see that there are decisions on both sides. In every kind of employment discrimination case, for example, there are decisions on both sides.” That’s got to be true. Alito has helped decide hundreds of cases. In one, he found that an elevator operator with a heart condition whose job had virtually vanished from the national economy was entitled to Social Security benefits. In a couple of others, he upheld the asylum petitions of desperate, persecuted immigrants. And he even once met a habeas corpus petitioner he liked—a black defendant who showed that the prosecutor in his case used 13 of his 14 challenges to strike African-Americans from the jury pool, and had the temerity to show up on a training videotape advocating the use of challenges to eliminate prospective black jurors.

In almost none of these cases, though, does Alito seem like a little-guy champion. He seems like a judge who dutifully follows the law. When the law instructs him to find for the criminal defendant or the plaintiff, he does so. When you get to the Supreme Court, though, you get to rip up the instruction manual and rewrite it. There’s very little in Alito’s record that suggests his revisions will favor the little guy. And a lot that suggests they won’t.