November 5, 2005

Alito is "deeply skeptical of claims against large corporations."

In the NYT, Steven Labaton detects in bias in favor of big business in Judge Alito's cases. (Why just big business?) Most of Labaton's article is not an analysis of cases, but a report on what various players in the nomination game already think: "Major business groups" are for him. "Corporate lawyers" reportedly liked seeing him on their panel while other kinds of lawyers didn't.

How about all those cases from 15 years on the bench? There's this:
[B]y articulating a narrow view of the Commerce Clause of the Constitution, he is viewed as a judge who would be skeptical of the involvement of federal regulators in matters he views to be strictly within the province of state officials.
(Could you use the word "view" a few more times?)

Does this refer to anything other than the one case in which, following the recent Supreme Court precedent in the Gun-Free School Zones case (Lopez), he concluded that a federal law prohibiting the possession of machine guns did not fit the commerce power? In that case, Rybar, Alito wrote:
The activity that the Lopez Court found was not "economic" or "connected with a commercial transaction" was a type of intrastate firearm possession, i.e., the possession of a firearm (including a machine gun) within a school zone. At issue here is another type of purely intrastate firearm possession, i.e., the purely intrastate possession of a machine gun. If the former must be regarded as non-economic and non-commercial, why isn't the same true of the latter? Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms. Is the possession of a firearm within a school zone somehow less "economic " and "commercial" than possession elsewhere -- say, on one's own property? If there are distinctions of constitutional dimension here, they are too subtle for me to grasp. It seems to me that the most natural reading of Lopez is that the simple possession of a firearm, without more, is not "economic" or "commercial" activity....
Note the struggle with Lopez's commercial/noncommercial distinction. Now, explain how the limit on the commerce power Alito perceived shows that he would undercut federal law relating to businesses (and specifically large corporations as opposed to smaller operations).

Labaton concedes that there are cases where Alito decided against business interests:
In 1991, a year after he got to the bench, for instance, he issued a dissent in which he ruled that foreign seamen on American-flag ships should be covered by the minimum wage provision of the Fair Labor Standards Act. And in a dissent from a 2000 decision, he interpreted the statute-of-limitations provision of a race discrimination law to the benefit of the plaintiff in an employment case. In a third case, he voted with two other judges to dismiss an industry challenge to tougher environmental law standards in coal mining.

But those three cases, Cruz v. Chesapeake Shipping, Zubi v. AT&T, and Pennsylvania Coal Association v. Bruce Babbitt, are considered by both supporters and critics to be exceptions.
Because why deal with the first hand evidence? We'll report on some outcomes (and ignore the reasoning and the case law that bound him), but let's get to what really matters: what the "supporters and critics" think is true.

This is an article about Alito's bias?


VietPundit said...

Prof Althouse, you're a one-lady-fisking machine!

This is the SCOTUS we're talking about, so why do you keep on talking about things like reasoning and case law?

gj said...

Where do you see the Professor talking about reasoning or case law in this blog entry? She's snarking at the NYTimes, and taking them down using innuendo and selective quoting.

If she wanted to be a one-lady-fisking machine, she would quote extensively from the piece in question. For example, the following section, which comes at the start of the article, completely belies her implication that the reporter hasn't really reviewed Alito's positions and is instead relying on hearsay:

"A review of dozens of business cases in which Judge Alito has written majority or dissenting opinions or cast the decisive vote shows that, with few exceptions, he has sided with employers over employees in discrimination lawsuits and in favor of corporations over investors in securities fraud cases.

"Judge Alito, President Bush's choice to replace Sandra Day O'Connor on the Supreme Court, cast the decisive vote in a case involving a major steel company, and in another involving a large chemical maker, over environmentalists in pollution cases.

"He has set aside punitive damages in some cases and reduced them in others; has handed down dissents that, if they became law, would impose higher burdens for workers to successfully sue their employers for discrimination; and has routinely upheld restrictive arbitration clauses that have limited the remedies available to plaintiffs."

In this post, Ann seems to be relying on the fact that her readers will read her post, have a chuckle at the expense of the New York Times, and not bother to go further and read the article she linked to.

It's true that Labaton does quote extensively from others commenting on Alito's judicial inclinations, but why is it invalid to quote from "officials at the National Association of Manufacturers and the United States Chamber of Commerce," and from "he head of the litigation department at Dechert, a large law firm based in Philadelphia that represents some of the nation's largest corporations, typically facing accusations of antitrust, securities or corporate law violations," when you are writing an article headlined "Court Nominee Has Paper Trail Businesses Like"?

Labaton's reference to the commerce clause may not be particularly backed up in this article, but it's also not central to the article. It's buried at the tail of a paragraph on another subject. (And, of course, the fact that it's not backed up in this article doesn't mean it's not true. But I imagine a broad discussion of Alito's view of the commerce clause will come up at other times.)

L. Ron Halfelven said...

Labaton's criteria for deciding which cases to examine are a little odd as well: they basically take in everything except unanimous decisions written by judges other than Alito. Why should an opinion joined by Alito be treated as his own when the panel is split 2-1 but not when it's unanimous?

Ann Althouse said...

Paul: Great question. I think it's partly that it's easier to study a smaller set of cases, but also there's a sense that it no one else joined him, it's more likely that he's "out of the mainstream." Thus, the cases where he's alone are more significant. But since he usually doesn't dissent, a lot of evidence that he is not extreme is not getting counted.

David said...

You seem to miss the central point of Labaton's article. Though the review of Alito's decisions is important, the article's "news" is the emerging coalition of business interests likely to take an unprecedented role in Alito's confirmation battle.

The review of his decisions explains why they are likely to go to the mat in this nomination.

Should the fact that the US Chamber of Commerce and the National Association of Manufacturers really want this guy on the Court influence your evaluation of his record? It seems that they disagree with you -- they think he's got a pro-business record, and they think that he will be probusiness on the court.

If you think Alito's not going to be a reliable vote for their interests, you should really be disagreeing with them. I'm sure Pat Cleary over at would be interested in your take.

As is, though, I doubt the major business groups would be willing to really enter a Supreme Court nomination debate -- which I'll emphasize again, is really an unprecedented act for business assocaitions -- unless they were confident he would support their positions.