Alito’s first significant vote: splits with conservatives
Supreme Court Justice Samuel A. Alito, Jr., one day after joining the Court, cast his first significant vote on Wednesday evening, and in the process split with the Court’s other conservatives: Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia and Clarence Thomas.
Those other three wanted to nullify an Eighth Circuit Court order delaying the execution of a Missouri death row inmate. The state’s request to lift that stay order went initially to Alito, who is assigned to handle such emergency matters from the Eighth Circuit. He passed the matter on to his eight colleagues, resulting in the vote to leave the lower court stay in place.
The order made no mention of Alito not participating — such a notation would have been added had he opted not to vote on the matter (Crawford v. Taylor, application 05-A-705). Earlier in the day, he did participate in at least one of the other orders in the Missouri case, casting a vote — along with all of his colleagues — on that particular maneuver. The apparent unanimity that time seemed to suggest the matter had little real significance.
There was no explanation for the final order leaving the stay in place — the latest in a flurry of last-minute pleas from the inmate, Michael Taylor, and from the state of Missouri. Taylor had been scheduled to be executed at midnight. Like other death row inmates who have been filing eleventh-hour pleas to the Court over the past week, Taylor is seeking to challenge Missouri’s use of lethal injection as its execution method. There has been no consistency in the results these pleas have drawn from the Court.
Alito and his colleagues acted on the latest round in the case after Alito and several colleagues had participated in another oath-taking ceremony for the new Justice — this time, in the White House’s ornate East Room shortly after 4 p.m.
It was entirely a political event — another way for President Bush and his aides to showcase Justice Alito and the triumph he appears to represent for the President in moving to change the Court’s direction. Alito already was a full-fledged member of the Court, after he took the required two oaths at midday on Tuesday at the Court. The White House festivities also were no substitute for Alito’s formal investiture ceremony, which will occur later at the Court.
Alito went back to his judicial duties after delivering a quite lengthy and at times emotional response to the President, filled with his expressions of gratitude for being named to the Court.
It appears that Alito will now cease to be the equivalent of a political prop for the White House. His only function now, it seems, is to be a judge
RESPONSE TO COMMENTS: The blog, as always, appreciates the efforts that our readers take to comment upon the posts. As a general rule, the comments will be allowed to go unanswered, in the way that letters-to-the-editor of a newspaper so often do. Now and then, though, the comments are critical enough that it would be disdainful not to respond. In this case, the comments suggesting hostility to Justice Alito deserve a response from the author.
When one has spent a professional lifetime covering the courts, and, in particular, the Supreme Court of the United States, one comes to understand deeply the vast difference between the way politicians react to the Court and the way other judges, lawyers, and sound legal journalists do. The Justices should not be put on display as if they were department store mannequins, placed in the window for mere show. The present White House’s behavior throughout the week of the Senate votes — on cloture, and then on confirmation — has shown a disturbing tendency to treat Judge Alito as if he were little more than political adornment. It scheduled the White House ceremony before the Court was even able to make final its own plan for the Judge to take his oaths and join the Court, and, in a display of particular institutional adolescence, sought to reveal even the Court’s oath arrangements before the Court itself could do so. The White House press office informed the gaggle of White House reporters of the plans without ever informing the Court, in fact. And, by proclaiming even before the final Senate vote that Alito would be attending the State of the Union message, the White House locked him into that, even if he may have had some reservations about being used in that way — reservations that some other Justices have had in recent years.
The author of this post has made a career of showing a decent respect for every Justice who has served in the last half-century. Justice Alito will get the same.
One would not dare to offer advice to the White House on how it wants to stage political theater, even over the nomination of a Supreme Court Justice. But one might hope that it would be done with some delicacy, with some sign of an awareness that the Court is not an extension of the Executive Branch, and with some gesture of respect for the independence of the Judiciary. It is not too much to suggest that Justice Alito, after what he has been through, probably would share those sentiments.
I could be proved wrong if we see the transcript, but my recollection of watching the speech yesterday is that it’s a fairly tenuous suggestion that the speech was delivered “to the President,” or that it was “filled with…expressions of gratitude [to Bush]“; the was that’s phrased seems almost to echo something you’d read in Pravda about a General getting a promotion. It wasn’t really a speech delievered to the President; Alito delivered a speech at the White House, on live television and to an audience in the room of several dozen. Justice Alito thanked practically evryone involved with the nomination, plus his law clerks, his amily, his colleagues on the third circuit…Everyone except the plumber, really. But with the greatest of respect, Lyle, it just seemed to me that this paragraph made it sound like the President’s bought-and-paid-for man on the court was kissing up to his master. If I hadn’t actually watched the speech, as many reading this won’t have, I think it misrepresents what was said and to whom.
Comment by Simon — February 2, 2006 @ 8:57 am
Did Justice Alito “vote to stay the execution” or “vote to lift the stay of the execution”?
Is there really anything surprising about Justice Alito not wanting to take the dramatic action of vacating the lower court’s order? This doesn’t seem to be a case of Justice Alito “stepping in” so much as it is a case of Justice Alito “stepping back.”
On another note, I think that your characterization of the delayed White House ceremony is surprisingly unfair. Justice Alito was confirmed the morning of the State of the Union Address. No White House would halt last-second speech preparations to hold the ceremony. So they held the ceremony the next day, when all parties would have time and when the SOTU Address wouldn’t crowd out news coverage.
I concur with Simon’s comment. Here’s Alito’s statement of appreciation to the President: “And thank you very much, Mr. President. Thank you for nominating me, and for all of the time and attention and personal support and encouragement that you have given to me and to my family at every step of this process, from the nomination all the way through the confirmation. My family and I are deeply — (applause.)” Is this really so outrageous? Do you really suggest that this is more political than any thank-you offered by any newly-confirmed Justice?
Here is Chief Justice Roberts’s swearing-in statement of thanks: “Thank you, Mr. President, for nominating me. There is no way to repay the confidence you have shown in me, other than to do the best job I possibly can do, and I will try to do that every day. And thank you for the remarkable team that you assembled to assist me throughout this process. I benefited greatly from the wisdom, judgment and plain hard work of Ed Gillespie, Senator Thompson, Harriet Miers, Bill Kelley, and everyone on the team. I am very grateful to each and every one of them.” This strikes me as pretty much indistinguishable from Alito’s statement. (And, I suspect, Breyer’s statement, Ginsburg’s statment, and so on.) I note that in your blog post of 9/29, your reference to the White House ceremony contained no criticism of Roberts’s statement of thanks. Why the disparate treatment?
Comment by Adam White — February 2, 2006 @ 9:24 am
With all due respect, I believe Mr. Denniston’s post was unnessarily harsh on the President.
In a situation like this, after a drawn out and (at times) heated confirmation, mild celebration is in order. Any generic President, following the confirmation of any generic nominee, would speak in the same glowing terms, with “hope for the future” et cetera. This is no different.
I’m also pleased to see Alito voted to uphold the stay. Even though I consider myself a Conservative leaner and a proponent of the death penalty, I am not privy to Taylor’s arguements for a stay so I can find no fault. I hope this early “surprise” disarms much of the Alito-will-steal-our-rights rhetoric that has been spewing unabated from the Left in recent weeks.
Also, as this is my first comment at SCOTUSblog, I feel I owe a debt of gratitude to everyone involved in its production. I’ve been a daily reader for over a year, and as I am only a mere law school hopeful (come on LSU, you *gotta* love that personal statement!) SCOTUSblog has been a great source of lay analysis for me. I sincerly appreciate everything y’all do! Keep up the good work!
Comment by Chase Tettleton — February 2, 2006 @ 9:40 am
(My first point was a poorly-worded attempt to pose a rhetorical question. I’m not suggeting that Lyle mischaracterized Justice Alito’s vote as a vote to stay an execution, only that he perhaps misreads the motivation for and import of Justice Alito’s vote.)
Comment by Adam White — February 2, 2006 @ 9:58 am
Adam White asked, ‘Did Justice Alito “vote to stay the execution” or “vote to lift the stay of the execution”?’
Justice Alito voted with five other justices to DENY the state’s motion to vacate a stay of execution that the Court of Appeals had granted. Roberts, Scalia, and Thomas had voted to GRANT the motion.
Adam asked, ‘Is there really anything surprising about Justice Alito not wanting to take the dramatic action of vacating the lower court’s order?’
I don’t know whether it is “surprising,” but it is certainly newsworthy that, in his first published vote, he did not join the three so-called conservatives (Roberts, Scalia, Thomas). Instead, he voted with Justice Kennedy and the four so-called liberals.
One cannot draw very many inferences from just one vote. But it certainly should give pause to those who had predicted that Alito would vote in lock-step with the conservatives. He is his own man, just as his backers predicted he would be.
Comment by Marc Shepherd — February 2, 2006 @ 10:24 am
I think this is exactly right. If I had wanted a sheep to provide a handy extra vote for Nino, I’d have gotten on the Miers bandwagon; I didn’t, I was thrilled when Alito got the nod, and I’m still thrilled today.
Not only are there several perfectly good reasons why Alito may have voted this way (see comments here, but the more important point is, if we (meaning Alito backers) don’t trust Alito by now, what have we been doing for the last three months? Making the best of it? I don’t believe that.
I have far more trust in Alito than I do in our Fearless Leader, because we have seen Alito’s behaviour as a judge for a vastly longer period than we have Roberts, and Alito espoused several philosophical commitments during his confirmation hearings that Roberts either declined to give or flatly decried. We cannot judge Justice Alito one way or another on his first action, but to suggest that we can judge Chief Justice Roberts after a few months in which he has often sided with Justice Thomas and Our Hero is no less absurd. In his first year on the Court, to my reading, Justice Souter joined the Chief Justice in practically every case; see 498 U.S. – 501 U.S.
These are lifelong appointments; I have concerns about our Fearless Leader, concerns which may (and probably will) dissipate over the course of not a few months, but the course of the next five to ten years. By contrast, I believe Justice Alito’s record has given us every reason we could ask for to trust him until he provides some sort of sustained and conclusive reason not to.
Comment by Simon — February 2, 2006 @ 10:34 am
I guess that I was just so unconvinced by arguments that Alito would be march in lockstep with Roberts/Scalia/Thomas that I was wholly unsurprised by the notion that Alito would not want to make waves on his first day on the job.
Comment by Adam White — February 2, 2006 @ 11:14 am
Adam’s “making waves” comment probably misses the mark. Alito’s first vote in a non-unanimous decision was going to make news, no matter what he did.
Had he voted the other way, the story would have been, “Aha! He’s a lock-step conservative, just as his detractors had feared.” Given the vote he cast, the story is, “Aha! He thinks for himself!” Neither characterization would be accurate, but that’s the way news headlines are written these days.
If the Court met in conference and followed its usual practice, the Justices would have spoken in descending order of seniority. So by the time it was his turn to speak, Alito knew that the rest of the Court was split 5-3, and his vote wasn’t going to be decisive either way. So I think he simply called it as he saw it, without really being concerned with whether he was making a wave. However, I suspect he was aware that a vote with the liberals would be seen–in most circles–as more surprising than a vote with the conservatives.
Now, had he cast a lone dissenting vote, or cast a decisive fifth vote, THAT would have been making waves.
Comment by Marc Shepherd — February 2, 2006 @ 11:40 am
It appears that Alito will now cease to be the equivalent of a political prop for the White House. His only function now, it seems, is to be a judge.
This last line is both snarky and rude. Sure, Bush is using Alito to restore some of the shine on his Presidency, but I think your wording implies that Alito is somehow actively trying to campaign for this President’s poll numbers.
Alito himself, since he was appointed by Bush 41, has always and only “function[ed]” as a judge. Alito isn’t stumping for Bush, and he doesn’t owe Bush any favorable votes.
The asymmetry with which you treat Alito’s comments vis a viz Roberts’ is demonstrative of some underlying hostility toward Justice Alito. Why would you let that show in your blog post? Sadly, I think you knew what you were doing.
Comment by wt — February 2, 2006 @ 11:54 am
“So by the time it was his turn to speak, Alito knew that the rest of the Court was split 5-3, and his vote wasn’t going to be decisive either way. So I think he simply called it as he saw it, without really being concerned with whether he was making a wave.”
It seems to me that one would hope that once a person assumes the lifetime position on the Supreme Court, that person can stop worrying about the waves that he or she may be making and always vote the way they see it, whether the other Justices are voting 8-0 or 4-4. In other words, the person can finally be genuinely intellectually honest without having to worry about political implications.
Comment by iuris causa — February 2, 2006 @ 11:59 am
I’m a liberal Democrat and the only part of Alito’s ceremony that seemed political to me was that it was at the White House, which inherently supports the President but isn’t so far beyond the pale.
And I think it’s either disingenuous or naive to think that Supreme court nominations are not an overtly political process. They all get used by the White House in some way whether you’re talking Alito, Ginsberg, Thomas, or anyone else appointed in the last couple of decades. The great thing about the Supreme Court is that the baby-kissing and Senate blah blah blah all go away after the nomination.
Of course, the most interesting part would have been if there had been some explanation of Alito’s decision: whether he was deferring to the lower court, found something flawed in the decision, or had some secret liberal agenda against the death penalty. ;) Y’know, like talking about the law or something?
Comment by hyounpark — February 2, 2006 @ 12:19 pm
I don’t read much into the fact that Justice Alito is not noted among the dissenters from the denial of an order to lift a stay. Lifting stays granted by lower courts is the exception, not the norm. The attack on lethal injection (formerly the defense side’s preferred alternative, when they were attacking the electric chair and gas chamber) is probably a new issue to him. None of his capital cases in the Third Circuit involved the issue. Given that his vote would not have changed the result, not challenging the majority and the lower court probably reflects caution until he has had a chance to fully consider the issue.
Comment by Kent Scheidegger — February 2, 2006 @ 1:41 pm
“If the Court met in conference and followed its usual practice, the Justices would have spoken in descending order of seniority.”
Actually, for stays and other emergency matters, they usually don’t meet for a formal conference, but circulate their votes by email and hardcopy, in no particular order. So, for all we know, Alito might have been the first rather than the last to vote. In fact, since the emergency matter arose from the CA8, if Alito had already taken over as Circuit Justice (had he?), he would have cast the FIRST vote as the justice referring the matter to the Conference with a recommendation.
Comment by Joey — February 2, 2006 @ 2:32 pm
“It seems to me that one would hope that once a person assumes the lifetime position on the Supreme Court, that person can stop worrying about the waves that he or she may be making and always vote the way they see it, whether the other Justices are voting 8-0 or 4-4.”
That’s useful as an ideal, but there are plenty of examples where a justice’s vote is affected by what his colleagues are doing. Justice Powell’s custom of offering a “gentleman’s fifth” vote on stays is an example.
Comment by Marc Shepherd — February 2, 2006 @ 3:40 pm
I actually thought the tone was pretty tame (except for the last line, which I thought politicized Alito far more than Bush has done). But now that I’ve read the update, I have to agree with the negative commenters. You really do seem to have an animus against the president for doing what presidents always do when they’re proud that their appointees get through a difficult Senate confirmation process. In fact, you seem to have an animus against the president for doing what a president should be expected to do and morally ought to do when proud of getting an honorable and excellent appointee through despite vicious person attacks and misrepresentations by the opposing party.
Given what really went on during the nomination process, Bush ought to be rejoicing. He ought to be congratulating the man who went through that ridiculous carnival treatment. He ought to be counterbalancing the Democrats’ delay tactics designed (in part) to prevent Alito’s confirmation before the State of the Union by ensuring that his swearing in could take place in time for him to attend proudly as a justice in robes along with the rest of the SCOTUS.
Also, after the delay caused by the Miers nomination and withdrawal, Bush had an obligation to try to allow Justice O’Connor to retire as soon as possible, for which I’m sure she’s grateful.
Comment by Jeremy Pierce — February 2, 2006 @ 5:06 pm
Justice Alito’s vote to deny the motion to vacate the Eighth Circuit’s stay of Michael Taylor’s execution is hardly noteworthy and should not be read as indicative of his broader views on the death penalty. First of all, the mere fact that the Eighth Circuit found the issue important enough to hear en banc, should give the justices significant pause. Second, it is not at all clear that the Eighth Circuit agreed to hear the case en banc in order to consider the merits of Taylor’s constitutional challenge to Missouri’s lethal injection procedure. Rather, it appears quite likely that the Court of Appeals will consider whether the original panel’s decision vacating the district court’s stay, and ordering the district court to (1)reassign the case to a new judge; (2)conduct a full hearing on the merits of Taylor’s constitutional challenge and; (3) issue a decision, all within a 48 hour period complied with notions of due process and fundamental fairness.
Comment by prufrock03 — February 2, 2006 @ 6:55 pm
I agree that the most reasonable inference is that Alito voted against vacating the stay. However, isn’t it true that no rule required him to list himself publicly as a dissenting vote? All that we can know for sure is that at least 5 justices voted against vacating the stay. We don’t necessarily know if Alito or some other justice also dissented, but chose not to make that dissent public.
Comment by ward — February 3, 2006 @ 12:39 am
Here here, Lyle. Keep on keepin’ on!
Comment by Stella — February 3, 2006 @ 3:44 pm