WASHINGTON — Conservative Justice Samuel Alito, a former U.S. attorney who has long voted in favor of prosecutors, has shown signs of empathy toward defendants in recent cases involving gun owners, Jan. 6 rioters and the former President Donald Trump.
Alito, appointed in 2006 by Republican President George W. Bush, has a reputation as the judge on the court most hostile to criminal defendants. Earlier in his career, he served as the United States attorney in New Jersey and held several other positions in the Department of Justice.
He sides with the accused less frequently than any of his eight colleagues, according to figures analyzed by Lee Epstein, a political scientist at the University of Southern California’s Gould School of Law.
But in several recent oral arguments in some of the most controversial cases currently before the court, Alito has notably raised questions about the Justice Department’s decisions to pursue certain cases, expressed sympathy for Trump’s argument that former presidents should be shielded from prosecution, and expressed concerns. about accusations against gun owners. Decisions in all cases are due by the end of June.
“It seemed like a totally different kind of justice than we’ve usually seen,” said Brianne Gorod, an attorney at the left-leaning Constitutional Accountability Center. Her comments seemed to suggest that Alito “can certainly demonstrate empathy, but that only applies to certain categories of people who come before the court,” she added.
An exchange during April’s oral argument about whether Trump should be immune from prosecution for his attempts to overturn the results of the 2020 election stood out to some observers.
Questioning Justice Department veteran Michael Dreeben, Alito asked whether prosecutors could be trusted not to file charges in frivolous or politically charged cases. He referred to the “old idea of the ham sandwich indictment,” a story about how easily prosecutors convince grand juries to green-light charges.
“You have a lot of experience at the Justice Department,” Alito told Dreeben. “Do you come across many cases where the U.S. Attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so?
“Such cases exist,” replied Dreeben.
“Every once in a while there’s an eclipse too,” Alito joked.
Neil Siegel, a professor at Duke University Law School, said he was struck that someone with Alito’s experience as a prosecutor could make such remarks.
“It’s really quite astonishing that the most pro-government, anti-criminal justice system is the one that, when it comes to President Trump as a criminal defendant, is willing to slander career lawyers at the U.S. Department of Justice. Justice,” he said in an interview.
Over the years, Alito has only voted in favor of criminal defendants in 20 percent of cases, according to Epstein. In some cases where even other conservatives sided with the accused, Alito was on the opposite side.
One such case is a 2009 ruling authored by stalwart 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 from 2009, Alito dissented when the court ruled that police could not search a vehicle without a warrant after an arrest.
Four years later, Alito was in the majority and Scalia dissented when the court ruled that states could conduct DNA testing during arrests without requiring a warrant.
Alito has taken a much more favorable tone to the defendants during recent closing arguments.
In one, Alito was among several justices who questioned the Justice Department’s use of an obstruction statute to prosecute those involved in the Jan. 6, 2021, attack on the Capitol. He suggested that if the court allows its application to the Jan. 6 defendants, prosecutors could also seek to use it against people involved in peaceful protests, like those that take place in the courtroom from time to time.
In another case involving a federal ban on gun accessories called “bump stocks” that allow a semi-automatic rifle to load more quickly, Alito said it would be “troubling” if people were prosecuted to own them as lower courts questioned the legality of the ban. even if the Supreme Court ultimately confirms it.
Alito also appeared concerned in another gun case about the due process rights of gun owners who face having to give up their firearms and risking prosecution if they don’t. , when they are accused of domestic violence.
What would happen, he asked, if people placed under domestic violence protection orders were themselves under threat?
“So the person thinks they are in danger and wants to have a gun. Is the person’s only recourse to possess the firearm and take their chances if they are prosecuted? He asked.
At one point, he even cited a friend-of-the-court brief filed by California lawyers who represent criminal defendants.
Alito’s defenders say there is a common thread in his criminal jurisprudence.
Kate Stith, a professor at Yale Law School, wrote in a recent article that Alito’s approach “reflects his aversion to reasoning that would leave the Supreme Court… in limbo, in a place that threatens to destroy understanding and social order. (Stith could not be reached for comment.)
Sherif Girgis, a former Alito lawyer and professor at Notre Dame Law School, said of Alito’s recent comments that it is “difficult to draw firm conclusions from the pleading,” noting that the immunity case in particular “raises extremely unusual issues”. constitutional questions. »
But for those who criticize Alito, his selective empathy ties him firmly to the kind of conservative cultural grievances that they say helped Trump become president.
In 2017, Siegel wrote an article in which he called Alito “the leading judicial voice for the millions of Americans who appear to be losing the culture war.”
Now he says it slightly differently, saying Alito is “the most MAGA Republican judge — and that’s a horrible, horrible thing to say about any jurist.”
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News Source : www.nbcnews.com
