WASHINGTON – Conservative former U.S. Attorney Justice Samuel Alito, a longtime voter in favor of prosecutors, has shown empathy for defendants in recent cases involving gun owners, the Jan. 6 riots and former President Donald Trump.
Appointed by Republican President George W. Bush in 2006, Alito is known as the trial justice most hostile to criminal defendants. Earlier in his career, he was a United States attorney in New Jersey and held several other positions at the Department of Justice.
He sided with defendants less often than his eight colleagues, according to figures released by political scientist Lee Epstein at the University of Southern California’s Gould School of Law.
In the last few oral arguments in some of the most controversial cases currently before the court, Alito has raised questions about the Justice Department’s decisions to prosecute certain cases, expressed sympathy for Trump’s argument that former presidents should be immune from prosecution and voiced concerns. about the prosecution of gun owners. Decisions on all cases must be made by the end of June.
“It seemed like a completely different kind of justice than what we usually see,” said Brianne Gorod, a lawyer with the left-leaning Center for Constitutional Accountability. His comments suggest that Alito “certainly can show empathy, but that’s only for certain categories that come before the court,” he said.
In April, oral arguments about whether Trump should be prosecuted for trying to overturn the results of the 2020 election threw some observers off guard.
Questioning Justice Department veteran Michael Dreebe, Alito asked whether prosecutors could be trusted not to bring frivolous or political charges. He referred to the “old saw about indicting the ham sandwich,” a tale about how easy it is for prosecutors to convince grand juries to green light prosecutions.
“You have a lot of experience at the Justice Department,” Alito told Dreeben. “Do you see many cases where the US attorney or some other federal prosecutor really wants to indict a case and the grand jury refuses to do so?”
“There are cases,” Dreeben replied.
“Every once in a while there’s an eclipse,” Alito joked.
Neil Siegel, a professor at Duke University Law School, said he was surprised that someone with Alito’s prosecutorial background would make such comments.
“It’s really amazing that the most pro-government, anti-criminal justice is the one willing to slander the career attorneys at the US Department of Justice when it comes to President Trump being a criminal defendant,” he said. interview.
Over the years, Alito has voted in favor of criminal defendants, according to Epstein. Even in some cases where other conservatives sided with the defendants, Alito was on the other side.
One such case is a 2009 verdict It was written by staunch conservative Justice Antonin Scalia that defendants have the right to question lab technicians who analyze evidence the prosecution hopes to rely on at trial.
In Another case of 2009Alito objected when the court ruled that police could not search a car without a warrant after an arrest.
Four years laterAlito and Scalia dissented when the court ruled that states could conduct warrant-free DNA testing during arrests.
Alito struck a more defendant-friendly tone in final oral arguments.
In one, Alito was among several justices questioning the Justice Department use of barrier law To prosecute those involved in the attack on the Capitol on January 6, 2021. He suggested that if the court allows it to apply to defendants on January 6, prosecutors could try to use it against people participating in peaceful demonstrations. what happens in the courtroom from time to time.
In another case On a federal ban on gun accessories called “shell stocks,” which allow a semiautomatic rifle to be reloaded more quickly, Alito said it would be “concerning” that people would be prosecuted for having them, even as lower courts questioned the legality of the ban. The Supreme Court ultimately approves it.
Alito also looked concerned separate gun case about the due process rights of gun owners forced to surrender their firearms and the risk of prosecution if charged with domestic violence.
He asked what would happen if people who were victims of domestic violence were themselves in danger.
“So a person thinks they’re in danger and wants to own a firearm. A man’s only recourse is to own a firearm and take his chances if he is prosecuted?” – he asked.
At one point, he even cited a friend-of-the-court brief filed by attorneys in California representing criminal defendants.
Alito’s defenders say his criminal jurisprudence has a common thread.
Yale Law School professor Kate Stith wrote in an article last article Alito’s approach “reflects an aversion to reasoning that would leave the Supreme Court . . . in a position that threatens to undermine social understanding and order.” (Stith could not be reached for comment.)
Sheriff Girgis, a former Alito lawyer who is a professor at Notre Dame Law School, noted that it is “difficult to draw firm conclusions from oral argument” regarding Alito’s recent comments, noting that immunity cases in particular “raise highly unusual circumstances.” constitutional issues”.
But to Alito’s critics, his voter empathy ties him firmly in line with the conservative cultural grievances they think helped make Trump president.
In 2017, Siegel wrote a post article where he called Alito “the leading judicial voice of millions of Americans who seem to be losing the culture war.”
Now he puts it a little differently, saying that Alito is “the most MAGA Republican justice ever,” and that’s a terrible, terrible thing to say about any lawyer.