Justice Alito: A Decade on the Court
Sam Alito: The Court’s Most Consistent Conservative
Only two weeks before Justice Samuel Alito marked his tenth anniversary on the Supreme Court, the Court struck down Florida’s death penalty scheme. It held that the scheme violated the Sixth Amendment jury right because it permitted judges to sentence individuals to death based on facts not found by a jury. Every Justice but one joined in that result. The lone Justice in dissent was Samuel Alito.That case—and Justice Alito’s willingness to stand alone in upholding a death penalty regime that the rest of the Court concluded was unconstitutional—highlights one fact that has become clear in Alito’s first decade on the Court: there is no one to his right on the current Court. The current Supreme Court includes a number of conservative Justices. But even when compared with them, Justice Alito is the most consistently conservative. His votes are almost always in line with what one would predict based on the policy preferences of the party of the President that appointed him, i.e., Republican President George W. Bush. And that fact—more than his jurisprudence in particular areas, or his methodological approach to judging, or any other facet of his service on the Court—seems likely to define his legacy.
The Unitary Executive and the Scope of Executive Power
In the Justice Department’s Office of Legal Counsel (OLC) in the 1980s, “unitary” meant unitary, as in e pluribus unum. When Deputy Assistant Attorney General Samuel Alito and his colleagues in OLC used the phrase “unitary executive,” they used “unitary” to convey two kinds of oneness. The executive is headed by a single person, not a collegial body, and that single person is the ultimate policy maker, with all others subordinate to him. In 2000, then-Judge Alito participated in a discussion of executive power, and noted his endorsement of the unitary executive theory that he had espoused while at OLC.
The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent
Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, is relatively young by Supreme Court standards (66 years old), is methodologically conventional, and is uniquely reliable. As a consequence, many conservatives love to celebrate him as the ideal Justice, and many liberals love to condemn him as politically driven.