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Alito's decisions precede him to top court

President Bush and his nominee for the Supreme Court, Samuel Alito. The top court has already acted on some of Alito's appellate opinions.
President Bush and his nominee for the Supreme Court, Samuel Alito. The top court has already acted on some of Alito's appellate opinions.
Ron Edmonds, Associated Press

WASHINGTON — Long before Samuel Alito takes a seat on the Supreme Court, his words precede him.

Assuming President Bush's nominee wins Senate confirmation, he will join seven colleagues on the bench who have already concurred with his opinions or scoffed at them, echoed his dissents or strongly disparaged them.

As a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, Alito has written hundreds of opinions or dissents in his 15 years on the federal bench. A few of those cases have gained a spot on the selective Supreme Court docket; even more have been affirmed or reversed through the prism of high court rulings on other appellate cases.

Alito has lost some close cases in the Supreme Court; two years ago he was soundly rejected in the case of a former elevator operator who was seeking Social Security disability payments.

Some observers contend it would be inaccurate to focus solely on Alito's win-loss record before the high court. The Supreme Court's motivation for choosing a case and its history with certain appellate courts must be factored in.

Judge Edward R. Becker, a Reagan appointee who has served with Alito on the 3rd Circuit, said of the reversals: "We've all had our share."

Alito's cases do provide some insight on what the justices thought about his judicial work. If confirmed in January, Alito would replace Justice Sandra Day O'Connor, who is retiring. Chief Justice John Roberts, also a former appellate judge, recently took his seat on the high court.

In at least three cases, the Supreme Court justices mentioned Alito by name and his writings in their citations, including the 1992 abortion case of Casey v. Planned Parenthood and a 2000 case involving Webster Hubbell, a former associate attorney general and friend of President Bill Clinton.

In 2004, Alito wrote the majority opinion as the 3rd Circuit decided to let stand a death penalty sentence for a Pennsylvania inmate who argued that his lawyer had done sloppy work during the penalty phase of the trial.

Alito, sounding dismissive, rejected Ronald Rompilla's argument that his trial counsel had, in the judge's words, failed to "take all the steps that might have been pursued by the most resourceful defense attorneys with bountiful investigative support."

"But while we may hope for the day when every criminal defendant receives that level of representation, that is more than the Sixth Amendment demands," Alito wrote.

The Supreme Court, in a 5-4 vote, overturned the death sentence and ordered a new penalty trial. Justice David H. Souter, writing for the majority, sided with the defendant. He was joined by O'Connor, the swing vote in the case, and the court's liberal justices.

Souter wrote: "We hold that even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on."

In a sharply worded dissent, Justice Anthony Kennedy agreed with Alito and the 3rd Circuit that it was right to uphold the state ruling.

"We have reminded federal courts often of the need to show the requisite level of deference to state court judgments," Kennedy wrote. "By ignoring our admonition today, the court adopts a do-as-we-say, not-as-we-do approach to federal habeas review."

In 2003, the 3rd Circuit backed Pauline Thomas, a disabled former elevator operator who had applied for federal Social Security disability payments after her employer installed new elevators and eliminated her job.

The government had denied her claim for benefits.

"Sam wrote and I was with him on it," said Becker, who noted that elevator operators were rare in public places — except at the Supreme Court, as Justice Antonin Scalia pointed out during the oral arguments.

"Sam got reversed on that nine-zip. Sam was for the little guy," Becker said.

In his 10-page opinion, Scalia disparaged the 3rd Circuit's logic in the case, and wrote, "To generalize is to be imprecise. Virtually every legal (or other) rule has imperfect applications in particular circumstances."

Evaluating Alito's opinions and dissents before the Supreme Court is far from an exact science. The high court considers only about 80 cases per term, and the 3rd Circuit, which has jurisdiction for New Jersey, Pennsylvania, Delaware and the Virgin Islands, gets only a few in that group.

In 2003, the Supreme Court considered four cases from the 3rd Circuit, compared with 33 from the largest, the San Francisco-based 9th Circuit, and 10 from the Cincinnati-based 6th Circuit, according to the Harvard Law Review.

"The 3rd Circuit is a tiny circuit," said Tom Goldstein, a Washington lawyer who argues frequently before the high court.

The Supreme Court's reason for taking a case also is a factor. The court sometimes selects a case because an issue has been bubbling in lower courts and the justices decide it's time to weigh in.

"They're writing the law. It's very different from taking the lower court decision and beating on them for being stupid," said Stephen L. Wasby, a professor at the State University of New York at Albany who has analyzed how the 9th Circuit fared before the Supreme Court.

Frank Cross, a professor at the University of Texas who has examined the work of circuit judges, said Alito's opinions were seldom reviewed, in part because he wrote "cautious, fairly modest opinions, not the extreme case the Supreme Court is going to take."

Legal experts also cited what's known as "circuit splits," in which the Supreme Court rules on one case but the decision reflects on a case from another circuit. This has happened a number of times with Alito's opinions and dissents.

Howard Bashman, a Philadelphia attorney whose Web blog focuses on the appellate courts, has analyzed how the 3rd Circuit has fared before the Supreme Court since 2000. His analysis cited several circuit splits in which the Supreme Court's ruling affirmed or rejected Alito's stand in a separate 3rd Circuit case.

"He's viewed as someone who does his best to apply the law fairly and intelligently," Bashman said. "His record would be an admirable one."