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The Alito Effect

The Supreme Court issued three opinions today, upholding a Republican-engineered Congressional redistricting plan in Texas (League of United Latin American Citizens v. Perry), upholding a Pennsylvania ban on newspapers and magazines for prison inmates (Beard v. Banks) and  ruling that states may bar foreign nationals from raising treaty rights not raised at trial (Sanchez-Llamas v. Oregon). Lyle Denniston has more at SCOTUSblog.

The Pennsylvania case is one in which Justice Alito, as a member of the 3rd U.S. Circuit Court of Appeals, was the lone dissenter voting to uphold the ban. He did not participate in today's ruling. Yesterday, Tom Goldstein posted his thoughts on the effect of Alito on the Court, noting:

"This timing of Justice O'Connor's retirement provides an unusual opportunity to isolate the effect of the appointment of Justice Alito on the Court's jurisprudence."

For the three cases reargued after O'Connor's departure, Goldstein offers "a very educated guess" on whether Alito's appointment changed their outcomes. In two of the three, he says, the answer is yes.

In Garcetti v. Ceballos, Goldstein notes that Justice Souter ended up writing no majority opinions from the Court's October sitting, while Justice Kennedy ended up writing two, of which Garcetti was one.

"Because there were only 8 cases argued in October, no Justice should have ended up writing the opinions for the Court in two cases. ... So it is fair to conclude that Justice Souter had the majority before Justice O'Connor's retirement, then lost it when Justice Alito joined the Court."

Hudson v. Michigan suggests a similar scenario, Goldstein writes. While the eventual opinion was authored by Justice Scalia and the principal dissent was by Justice Breyer, the fact that Scalia ended up with two opinions from the January sitting and Breyer had none means "it is fair to conclude that Justice Breyer had the majority before Justice O'Connor's retirement, then lost it when Justice Alito joined the Court."

In the third reargument, Kansas v. Marsh, O'Connor's retirement appears not to have made a difference, Goldstein says.

"Justice Thomas ended up with no opinion from the December sitting, indicating that Marsh was the opinion he would have authored for that sitting had it not been reargued. Justice Souter wrote a majority opinion for that sitting, indicating he did not lose a majority from that sitting."

Posted by Robert J. Ambrogi on June 28, 2006 at 03:58 PM | Permalink | Comments (0)


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