WASHINGTON – Conservative Justice Samuel Alito, a former U.S. attorney with a long history of voting in favor of prosecutors, has criticized recent protests involving gun owners, the Jan. 6 rioters and former President Donald Trump. He has shown signs of sympathy for the defendant in the case.
Mr. Alito, appointed by Republican President George W. Bush in 2006, is known as the court's most hostile judge toward criminal defendants. Early in his career, he served as U.S. attorney for New Jersey and held several other positions at the Department of Justice.
He takes the stand for defendants less frequently than any of his eight colleagues, according to figures compiled by Lee Epstein, a political scientist at the University of Southern California Gould School of Law.
However, during recent oral arguments in some of the most controversial cases currently before the court, Alito specifically questioned the Justice Department's decisions to prosecute certain cases, citing former president expressed sympathy and concern about President Trump's assertion that the United States should be immune from prosecution. Regarding the prosecution of gun owners. Judgments on all cases are expected to be rendered by the end of June.
“This seemed like a very different kind of justice than what we're used to seeing,” said Brianne Gorrod, a lawyer with the left-wing Center for Constitutional Accountability. She added that his comments seemed to suggest that Alito was “certainly capable of empathy, but only with certain categories of people who come to court.”
An exchange during oral arguments in April over whether President Trump should be immune from prosecution for trying to overturn the 2020 election results caught the attention of some observers.
Mr. Alito asked Justice Department veteran Michael Dreven whether he could trust prosecutors not to seek indictments in frivolous or politically charged cases. He referred to the “old ham sandwich indictment story” about how easy it is for prosecutors to convince a grand jury to greenlight an indictment.
“You have extensive experience at the Department of Justice,” Mr. Alito told Mr. Dreeben. “Have you come across many cases where the U.S. attorney or other federal prosecutors really wanted to indict you, but the grand jury refused to do so?”
“There are cases like that,” Mr. Dreeben replied.
“Sometimes there are solar eclipses,” Alito joked.
Neil Siegel, a professor at Duke University School of Law, said he was shocked that someone with Alito's background as a prosecutor would make such a statement.
“It's really baffling that the most pro-government, anti-criminal defense judge would be so willing to smear a career attorney at the U.S. 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 only 20% of the time, Epstein said. In a case in which even other conservatives sided with the defendants, Mr. Alito took the other side.
One such case was a 2009 ruling by staunch conservative Justice Antonin Scalia that said defendants had the right to question medical examiners analyzing evidence that prosecutors wanted to rely on at trial. Ta.
In another 2009 case, Alito objected when a court ruled that police could not search a vehicle without a warrant after an arrest.
Four years later, when the court ruled that states could conduct DNA tests upon arrest without requiring a warrant, Alito was in the majority and Scalia was in the dissent.
Alito took a much more pro-defendant tone during recent oral arguments.
Alito was one of several justices who questioned the Justice Department's use of obstruction laws to prosecute those involved in the Jan. 6, 2021, attack on the Capitol. . He suggested that if the court approves the system being applied to the defendants on January 6, prosecutors may also seek to apply the system to people involved in peaceful demonstrations that occasionally take place in court. did.
Alito comes at a time when lower courts are questioning the legality of the ban in a separate case involving a federal ban on a gun accessory called a “bump stock” that allows for quick submission of semi-automatic rifles. He said it would be “alarming” for people to be prosecuted for possessing them. Even if the Supreme Court ultimately upholds it.
Alito also said in a separate gun case that he was concerned about the due process rights of gun owners who must surrender their firearms if they are accused of domestic violence or risk being prosecuted. It seems there is.
He asked what would happen if people with domestic violence protection orders themselves were threatened.
“That is, that person wants to have a firearm because they think they are in danger. ” he asked.
At one point, he cited an amicus brief filed by a California lawyer representing criminal defendants.
Alito's lawyers argue there are similarities in his criminal jurisprudence.
Kate Stith, a professor at Yale Law School, wrote in a recent article that Alito's approach “harnesses his aversion to reasoning that puts the Supreme Court in a corner and threatens to disrupt public understanding and order.” It reflects,” he wrote. (Mr. Stith could not be reached for comment.)
Sherif Guirgis, a former Alito law clerk and professor at Notre Dame Law School, said in reference to Alito's recent statements that “it is difficult to draw firm conclusions from oral arguments,” especially in immunity cases. “This is causing a very unusual problem.” constitutional question. ”
But for Alito's critics, his selective sympathies firmly connect him with the kind of conservative cultural grievances they think helped Trump become president.
In 2017, Siegel wrote an article calling Alito “the chief judicial spokesperson for the millions of Americans who are on the brink of losing the culture war.”
Now, he puts it a little differently, saying Alito is “the most MAGA Republican justice, and that's a horrible, horrible thing to say about any jurist.”