Alito's Dissents

Cass Sunstein had a Washington Post op-ed the other day in which he analyzed the cases in which Judge Alito dissented. (He had already presented the results of his study on a radio show, as discussed by Ann Althouse here). Sunstein summarized Alito's dissents like this:

As an appeals court judge, Samuel Alito has compiled a massive record that includes more than 240 opinions. Of these, the most illuminating may well be his 41 dissents -- opinions that he has written by himself, rejecting the views of his colleagues.

When they touch on issues that split people along political lines, Alito's dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative's conservative -- not always in his reasoning, which tends to be modest, but in his ultimate conclusions.

Sunstein also emailed Ann Althouse (see the post linked above). In his email, he clarified his methodology:

In terms of counting: I looked over 41 dissents (not including the 14 or so concurring and dissenting opinions). Some of them are easy to code in ideological terms; some of them aren't. Somewhere between 13 and 20 are best treated as "neutral," that is, no ideological valence at all. Of those with an ideological valence, somewhere between 100% and 85% are to the majority's right.

So out of 41 dissents, 13 to 20 are "neutral," whatever that means, while the other 21-28 are more identifiable as "conservative." So even assuming that Sunstein's classification is correct, Alito wrote a "conservative" dissent about 1.7 times per year. But as discussed further below, Alito participated in between several hundred and several thousand appellate decisions over his career (depending on how you count the cases). If Alito is supposed to be a radical conservative activist, dissenting a mere 1.7 times per year is a shabby performance. (Surely an activist could have done better than that!)

But Sunstein's analysis already seems to be getting some traction. On meeting Alito, Senator Mark Pryor's reaction included this:

Pryor said he questioned Alito about his dissents in cases that came before his court.

"I did talk to him about the fact that he had so many dissents and what should I make of that," he said. "Should I see that as he is biding his time until he goes up to the U.S. Supreme Court and then he's going to have his way?

But compare Sunstein's analysis to the analysis by a couple of New York Times reporters:

Judge Samuel A. Alito Jr. dissents slightly more often than the typical appeals court judge, and his dissenting opinions are almost always more conservative than the majority's.

In the several hundred cases he heard over 15 years on the United States Court of Appeals for the Third Circuit, Judge Alito dissented more than 60 times, often taking issue with decisions that sided with criminal defendants, prisoners and immigrants.

The first thing that I notice is that the numbers are different. Why did Sunstein find only 41 dissents when the New York Times found over 60? As for the total number of cases, this depends on how you count them. If one searches LEXIS for all cases where Alito was on the panel, LEXIS won't even compute the result, because it is over 3,000. By far, most of those were summary affirmances of the district court's decision. I'm not sure how to search for only the cases with written opinions, but I suspect that the New York Times' figure of "several hundred" is more accurate than Sunstein's figure of 240. 240 written opinions may sound like a lot, but it strikes me as very low for an appeals court judge who has been on the bench for 15 years.

On a different point, while both Sunstein and the New York Times describe Alito's dissents as "conservative," the New York Times' analysis is much more useful and accurate than Sunstein's:

He frequently voted in favor of the government and corporations in these dissents. He generally deferred to what he called the good faith judgments of other participants in the justice system, including police officers, prosecutors, prison wardens, trial judges and juries. He appeared particularly reluctant to order new trials over what he called harmless errors in the presentation of evidence or in jury instructions.

* * *
One theme that runs through Judge Alito's dissents is deference to the views of the people and the agencies closest to the facts and thus, in his view, best situated to make decisions.

* * *
Judge Alito almost always showed reluctance to interfere with a case after a jury had decided it.* * *

If a appeals court judge generally defers to a jury or a district court judge, why is such deference classified as either "conservative" or "liberal"? "Restrained" or "modest" would be a more appropriate word. Sunstein seems to be determining what counts as "conservative" based on a crude caricature of conservatives (who apparently always want free speech claims and plaintiffs to lose) and a crude caricature of the law (in which judges do nothing other than award a "conservative" or "liberal" victory to their preferred side).

The New York Times' analysis is also more accurate in that it describes various Alito dissents that went in the "liberal" direction:

Federal courts hear relatively few personal injury cases, but Judge Alito dissented in four of them. In two, he voted against the injured plaintiff.

For example, after a truck driver lost a products liability trial against the manufacturer of his vehicle, the appeals court majority ordered a new trial, in part on the ground that the trial judge had improperly allowed the jury to hear that the driver was not wearing a seat belt. Judge Alito agreed that was a mistake but said the error was harmless.

But in other injury cases, Judge Alito would have let verdicts stand. In one, a group of doctors sought to have a jury's verdict against them overturned in a lawsuit by the parents of a girl who died as a result of a liver disease.

The doctors argued, Judge Alito wrote, "that they should escape all or part of the liability for their malpractice because the young woman and her parents were foolish to have followed their bad advice. The majority holds that the trial judge should have charged the jury on this defense. In my view, however, there is no evidence that the girl and her parents were negligent. Their only mistake was to trust the defendants' advice, which, although negligent, was not so implausible on its face that lay people should have known better than to have followed it."

Note that in both cases here (assuming that the descriptions are accurate), Alito voted to affirm lower court rulings. In practice, this meant that some of his votes were for the plaintiff and some were for the defendant. It wouldn't be fair to pick out one of these personal injury cases in which Alito found for the defendant, and then to claim that this represents Alito's "conservative" desire to grant defendants a victory.

But that is exactly what Sunstein did. He explicitly lists a personal injury case where Alito said literally nothing other than that he would have affirmed the district court's factual judgment. This is supposed to support Sunstein's thesis that Alito writes "almost uniformly conservative" dissents. But Sunstein doesn't mention the other personal injury cases where Alito voted for the plaintiff. Nor does he explain why it is appropriate to say that these sorts of decisions are either "conservative" or "liberal" when the judge merely takes a deferential view towards the lower court or the jury, whatever it decided.

Finally, another fact not discussed by Sunstein:

The Supreme Court rejected the position set out by Judge Alito in a dissent in an abortion case. But in at least three other cases, it adopted the position advanced in his dissent.

Frank B. Cross, a law professor at the University of Texas who has compiled a database tracking how the Supreme Court reviews appellate decisions, said: "This is the [third] highest of anyone in the database. It shows that when his court took an important and controversial case and got it wrong, from the perspective of the Supreme Court, he identified that and dissented. Indeed, his dissent may have been part of what got the Supreme Court's attention"

Impressive.