Emily Bazelon has an excellent article about Sam Alito, focusing on recent opinions in which his views center on his feelings for individuals he considers to have been wronged. Bazelon's analysis first of all reminds me of Adam's excellent point that the same conservative commentators who attacked Sonia Sotomayor for some mild comments suggesting that her background influenced her judging also believed that Sotomayor grievously erred by not expressing sufficient empathy for Frank Ricci.
That's not to say, of course, that it's wrong for justices of any ideological stripe to empathize with people making legal claims. The problem with Alito is that his empathy is exceptionally limited. Indeed, there's no effective difference between Alito's "empathy" and just being a Republican party-liner:
Meanwhile, Alito is the least likely justice to show a glimmer of concern for the rights of criminal defendants. He has ruled for the defense in only 17 percent of the criminal cases he has heard since he joined the court, putting him to the right of Roberts, Scalia, Thomas — and every other justice of the past 65 years other than William Rehnquist, according to Lee Epstein, a professor of law and political science at Northwestern, who ran the numbers for me in the Supreme Court database she works with.
All the pieces of Alito's record fit together. As a prosecutor, a federal-appeals judge and now as a Supreme Court justice, Alito is defined not by his broad ideas but by his consistency. Instead of the pizzazz of Scalia or the polish of Roberts, Alito makes his mark by getting to the outcomes conservatives favor with whatever tool is at hand and with even more predictability.
The perception of many pundits that Alito was some kind of moderate notwithstanding, he's the most predictable and hard-line conservative ideologue on the Court -- even when compared against Scalia and Thomas.
--Scott Lemieux
