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U.S. Supreme Court

Alito More ‘a Feelings Justice’ than a Grand Vision Type

Posted Mar 21, 2011 5:30 AM CDT
By Debra Cassens Weiss

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Justice Samuel A. Alito Jr.’s dissents in two First Amendment cases has led to a cluster of classifications in articles describing his judging style.

A law professor writing in the Washington Post called Alito “America’s privacy cop,” while a doctoral student deemed him “the face of empathy” in a Huffington Post essay.

Now the New York Times is weighing in with a magazine story that calls Alito “the closest thing conservatives have to a feelings justice.”

Republicans protested when President Obama said before his nomination of Sonia Sotomayor to the Supreme Court that he was looking for a justice who has empathy for others and their struggles. But those critics are silent about Alito, who “expresses feelings mostly for people who are a lot like him,” the Times story says.

The Huffington Post highlights two Alito dissents. In Snyder v. Phelps, Alito expressed sympathy with the grieving father of a slain Marine who sued anti-gay funeral protesters for emotional distress. And in United States v. Stevens, Alito defended a law banning animal crush videos, writing about the “excruciating pain” felt by the animals as they are crushed to death.

The Times notes a concurrence by Alito in Ricci v. DeStefano, a decision that sided with white firefighters challenging a decision to throw out a promotional exam because no blacks got top scores. Alito wrote about the personal sacrifices of the white firefighters who studied hard for the test.

That kind of empathy is lacking, the Times says, when Alito considers the rights of criminal defendants or when he cast the deciding vote against Lilly Ledbetter, a worker who missed a deadline to sue over 20 years of unequal pay.

Says the Times, “Instead of the pizzazz of [Antonin] Scalia or the polish of [Chief Justice John] Roberts, Alito makes his mark by getting to the outcomes conservatives favor with whatever tool is at hand and with even more predictability.”

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