Horace Cooper

Judge Samuel Alito’s critics are once again relying on distortion and misrepresentation to malign his record. This time the focus is on death penalty cases. In a recent Los Angeles Times piece, UC Berkeley professor (and former law clerk to Supreme Court Justice Ruth Bader Ginsburg) Goodwin Liu claimed ominously that Alito’s “opinions show a troubling tendency to tolerate serious errors in capital proceedings.”

As former House Majority Leader Dick Armey would say, “You can’t be this wrong by accident.”

This claim is just flat wrong. In the 15 years Alito has served on the 3rd Circuit Court of Appeals he’s only been involved in 10 capital cases. And of these Professor Liu argues that only half should even be considered. 

While looking at the more than 300 3rd Circuit cases Alito has been involved in might entail a greater effort, such an approach would yield more comprehensive results than the cramped results of a handful of cases.

Unless of course, a comprehensive assessment isn’t what is sought.  

Examining five cases out of 300 is a futile means of achieving any significant insight into Alito’s legal theories. Furthermore, Prof. Liu's specific conclusions, reached on such a limited scope, are worrisome.

According to Prof. Liu, “In every one of the five contested cases, Alito voted against the inmate.” 

Is this surprising in such a limited pool? Moreover, why the negative conclusion based solely on this result? Arguably this limited evidence could indicate that Alito is a “law and order” judge who isn’t tempted by novel sociological theories about crime control. 

Or it could also mean that he’s for free trade -- or any other interpretation you want. If the mere result alone is the basis for a conclusion, then all manner of conclusions can occur.

On the other hand, a close examination of two of the death penalty cases selected speaks volumes about Prof. Liu’s views on judicial interpretation. In the first example Alito dissented, in the second he wrote the majority opinion. 


Horace Cooper

Horace Cooper is a legal commentator and a Senior Fellow with the Institute for Liberty.