Posted on Fri, Nov. 04, 2005
Alito shows a different side in his dissents
BY STEPHEN HENDERSON
Knight Ridder Newspapers
WASHINGTON - The facts of the case were stunning: A 10-year-old was strip-searched in her home by police officers whose warrant authorized only the search of her father, a suspected drug dealer.
To the other judges who heard the case, the law seemed clearly on the girl's side: The very purpose of a warrant is to limit the scope of permissible searches.
But Supreme Court nominee Samuel Alito saw it differently. And his ruling opens a window onto one facet of his judicial philosophy.
Alito said the girl's search, while unfortunate, was justified because supporting documents broadened the warrant's sweep. It was a technicality, he said, that the particulars were left out of the warrant itself, and that was no reason to punish good cops who were just doing their jobs.
He was the only judge hearing the case who thought the police acted properly.
In most of his judicial work, through more than 250 majority opinions he authored in 15 years on the bench, Alito displays a conservative but reserved approach to judging. He's very respectful of precedent, and takes an exacting, almost scholarly look at each case before deciding. He avoids broad pronouncements or sweeping opinions.
But in his more than 60 dissents over that time - as in the strip-search case - he's been more outspoken about areas of law that he finds dissatisfying and how he might change them.
Those opinions reveal more of a conservative activist, a judge who'd make it harder to prove race- and gender-discrimination claims, limit Congress's regulatory reach and - as the strip-search case suggests - lower the bar for search and seizure standards.
To be sure, dissents sometimes exhibit judges' idiosyncrasies. They can't always be read as direct reflections of how those judges might rule on other cases with different facts.
Even so, Alito's dissents will draw a sharp look from the Senate, because together they show a strong, consistent record of pushing the law, albeit incrementally, rather than simply reflecting it.
Alito could have a harder time defending his record than did Chief Justice John G. Roberts. Roberts advocated similar positions when he was a government lawyer in the Reagan and George H.W. Bush administrations. But he asked the Senate to recognize the difference between things he said as an advocate and the restraint he'd exercised as a judge.
Alito, whose attempts to push the law came during his time on the bench, won't be able to make that distinction.
"Alito doesn't seem to be looking for big shifts in the law, the way you see some judges pushing," said Douglas Berman, an Ohio State University law professor and criminal law expert. "But he does seem inclined to take advantage of gaps in the law when he can, to move in a certain direction. In the strip-search case, for example, it looks like he has a certain result in mind, and he's willing to push the law to get there."
Charles Hobson, a lawyer with the Criminal Justice Legal Foundation, a victims' rights advocate, said Alito wasn't being activist in his decision.
"Activism implies that you're using your personal feelings to decide the case, and he's not doing that here," Hobson said. "He's sympathetic to the girl, and says the experience for her was horrible. But the law as he sees it doesn't favor her, so that's how he ruled. He made the tougher decision in the case, because it's so emotional."
Hobson said it was important to keep in mind that Alito was a conservative on the 3rd U.S. Circuit Court of Appeals, a moderately liberal bench, so he was often in the minority. "He's going to have a lot of opportunities to dissent from things he sees there; that's only normal."
In the strip-search case, the 3rd Circuit majority said the police had overstepped their bounds. The opinion was written by then-judge Michael Chertoff, who like Alito was a former prosecutor. He's now homeland security secretary.
Police in the case had requested a warrant to search the suspected drug dealer's home, noting that he often had others present. The warrant named only the suspect.
When police found the man's wife and 10-year-old daughter in the home, they searched them, too. A female officer took them to a bathroom, where they were instructed to disrobe so the officer could search them for drugs.
Chertoff's opinion was blunt: The "face of the warrant ... does not grant authority" to search the girl or her mother, he wrote. Citing a recent Supreme Court precedent, Chertoff said police rarely could exceed the bounds of a warrant. And courts mustn't read a warrant in a way that "violates its fundamental purposes."
Alito disagreed. He said the warrant should be read broadly because its applicants had requested a wider search and because the officers reasonably would have thought that the warrant covered their request.
He said the recent Supreme Court ruling didn't address the facts in the strip-search case, so it didn't control his decision. He said he shared the majority's "visceral dislike" for the search of a child, but added "it is a sad fact that drug dealers sometimes use children" to do their business.
The difference between Alito and Chertoff is a fine one in legal terms, but Alito's position represents a push against established law that echoes in many of his other dissents.
In another search case, Baker v. Monroe Township, Alito disagreed with a ruling that said a woman and her daughters were detained illegally - handcuffed and held at gunpoint - when they happened to walk into a drug bust at a friend's home.
Alito said police had reasonable suspicion, given that "there was a good likelihood that visitors to the apartment were drug buyers." His opinion in that case also turned on fine legal points, but he was attempting to move the law in a direction that was more sympathetic to authorities.
His dissents in other areas reflect a similar strategy: finding a technical basis for disagreement and using that to push the law in a new direction. The question, experts said, is how that might influence Alito's behavior on the high court.
"The smarter guys move things incrementally anyway, but that doesn't mean they're not moving them," said Berman, the law professor.
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