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If Samuel Alito Jr. is confirmed as a Supreme Court justice, the first time he steps onto a Court elevator he will be reminded that he and Justice Antonin Scalia do not always agree. The Court is one of the few places that still employ elevator operators, a fact that played a cameo role in a 2003 Scalia opinion that completely rejected a ruling Alito wrote as a judge on the 3rd U.S. Circuit Court of Appeals. Alito had supported a New Jersey elevator operator’s claim for Social Security disability benefits. But Scalia, writing for a unanimous Court, said the woman’s benefits could be denied even though she had no job to go back to, since the position of elevator operator had virtually vanished from the labor market. The fact that the Supreme Court was one of the few institutions that still employed elevator operators was noted at oral argument. “Judge Alito took on the system on behalf of this woman,” says Abraham Alter of the Rahway, N.J., firm Langton & Alter who represented the claimant, Pauline Thomas. “I am a lifelong liberal and a Democrat, and I think he is a terrific judge.” Alito’s opinion in Barnhart v. Thomas was one of several items cited last week in a concerted effort by the White House and its supporters to decouple the nominee from Scalia in the public’s mind — even though, for many of them, linking the two would be a compliment. The disability case was an example, Sen. Arlen Specter, R-Pa., said last week, of Alito “looking out for the little guy” in contrast to the subsequent Scalia ruling. “Sam Alito is his own man,” added former Reagan administration Attorney General Edwin Meese III, in response to the comparison between Scalia and Alito. And at a Justice Department briefing on Alito that emphasized his liberal-leaning decisions, a senior official said the point being made was that “you can’t pigeon-hole Judge Alito.” The official, who could not be identified under rules of the briefing, added, “He takes every case on its own two feet.” Alito seemed to further distance himself from Scalia when Sen. Dick Durbin, D-Ill., asked him on a Nov. 2 courtesy call to name his favorite justices. Among the justices Alito mentioned: the late liberal lion William Brennan Jr., a fellow New Jerseyan who was also singled out for praise by David Souter during his 1990 confirmation hearings. INSIDE THE LINES But as Alito’s supporters labored to place him well outside the Scalia orbit, or any other kind of orthodox ideology, it became harder to distinguish Alito from Chief Justice John Roberts Jr. or Sandra Day O’Connor, the justice he was nominated to replace. Many who know Alito and have followed his 15 years of jurisprudence have a strong sense that he is more conservative than either Roberts or O’Connor but are hard pressed to name specific areas where his vote will make a difference. “Alito seems to be more to the right than where O’Connor was, but Roberts may be as much to the left of where Rehnquist was,” says Steven Calabresi, a Northwestern University School of Law professor and founder of the Federalist Society who used to work with Alito at the Justice Department. “It may not end up changing things that much. I see Alito and Roberts both as gradualists.” That means those who hope O’Connor’s departure will result in big changes at the Court may be in for at least a mild disappointment. Michael Greve, the American Enterprise Institute’s expert on federalism, thinks neither Alito nor Roberts shows enthusiasm for reviving the stalled movement toward state power that began under the late Chief Justice William Rehnquist. Greve has more hope about issues such as campaign finance reform, since Alito’s First Amendment sympathies might leave him more skeptical of campaign limits than O’Connor. Kevin Hasson of the Becket Fund for Religious Liberty, who has argued before Alito and was once a Justice Department colleague, sees the nominee as friendlier than O’Connor or Scalia toward religious accommodation — but still not a pushover. For example, in a case Hasson argued in 2001, ACLU v. Township of Wall, Alito declined to consider the merits of his argument in favor of a religious holiday display. Instead, Alito found that taxpayers had no standing to challenge the display because it was privately donated and involved no public funds. “Another judge might have gotten past the jurisdiction problem to reach the issue,” says Hasson. “But Sam wouldn’t do it.” Many Alito admirers also speak of his near obsession with staying inside the four corners of a case, deciding no more than is necessary. “He was my deputy, and it was not possible to intimidate him,” says Charles Cooper, who headed the Justice Department’s Office of Legal Counsel when Alito worked there. Cooper, now a partner at D.C.’s Cooper & Kirk, sees Alito as being very similar to Roberts. “He is comparable to John in so many ways. Intellectually honest, unassuming, self-effacing, endearing — a real honest guy.” ARRIVEDERCI ‘SCALITO’ Even the moniker “Scalito,” once viewed as a harmless way to capture the similarities between Scalia and Alito — both are conservative Italian-American judges who were born in Trenton, N.J. — was suddenly banished from the lexicon last week. Former Alito clerk Adam Ciongoli, who later served as counsel to ex-Attorney General John Ashcroft, says it was a “very unfortunate” term with no meaning. Ciongoli’s father, Kenneth, chairman of the National Italian American Foundation, lashed out at use of the nickname as an effort to “marginalize” Alito’s record and link the two justices simply because of their heritage. “Nobody who knows him uses the term,” says Gary Rubman, an associate at Covington & Burling in Washington who clerked for Alito five years ago. “There are a lot of differences. Judge Alito is not someone with an agenda. He has a case-by-case approach.” Rubman clerked for Alito when he wrote the opinion in the Thomas Social Security case. “It didn’t get much attention in the media, but it was debated very intensely, at great, great length.” The facts of the case reveal ways in which Alito and Scalia may differ. Pauline Thomas worked as an elevator operator in New Jersey until her job was eliminated. She decided to apply for disability benefits, citing a heart condition. But under the five-step process for determining eligibility, the government denied her claim because it determined she was capable of returning to her former job. A federal district court judge upheld the denial, but Alito reversed on appeal. In his opinion, Alito found that if Thomas’ job no longer existed in the work force, the fact that she was capable of performing it did not matter. She could not be gainfully employed at a job that had vanished. Alito also reasoned that Congress did not intend the Social Security law to deny benefits to claimants whose job category no longer exists. But when the case reached the Supreme Court, Scalia convinced his colleagues that the correct interpretation of Social Security law allowed the government to deny Thomas benefits without ever considering the issue of whether her job existed anymore. The Court gave deference to the Social Security Administration’s determination. Does the Thomas case mean that Scalia is the by-the-books conservative, while Alito is a results-oriented judge who bent the law to help a sympathetic claimant? Not at all, says Thomas’ lawyer, Alter, who has argued before Alito a dozen times. “He is the kind of judge who sees an unjust result and asks, ‘Does it have to come out this way?’ If it does, if the law gives him no other choice, he’ll say ‘OK.’ But if the outcome is not required, he’ll say, ‘Let’s not do it.’” Alter adds, “I don’t see any Scalia in him at all.” Scalia and Alito are different in other ways, as well. At meetings and oral arguments, Alito, unlike Scalia, will often pass up opportunities to speak. Alito can be almost awkwardly shy and laconic, leading many to predict that he won’t be the kind of justice who goes door to door seeking support for opinions from other justices. “He never began the conversation,” says Mark Levy, a Kilpatrick Stockton partner who was a Yale Law School classmate of Alito’s and serves with him on a Judicial Conference committee that updates federal court rules. “His personality is not that of a Brennan. John [Roberts] is a more outgoing personality.” Craig Green, a professor at Temple University School of Law, notes that while Alito is a known and respected judge nationally, he, unlike Roberts, is not well known by the justices or in Washington legal circles. As a result, Green says, “Alito will have the opportunity and burden of establishing his reputation among colleagues primarily after his arrival.” Those who know Alito predict he would get along equally well with all the justices, not forming any special bond with Scalia or Justice Clarence Thomas, who were initially portrayed as his ideological soul mates. By the same token, few see Alito actively strategizing to overturn Roe v. Wade or any other major precedent any time soon. As early as his student days at Yale Law School, Alito showed disdain for hidden alliances and horse-trading among the justices. In a Yale Law Journal note that studied mid-20th-century establishment clause cases, Alito cited Justice Harold Burton’s papers to show that “extensive bargaining” may lead to confused and confusing opinions that “may not represent the actual position of any justices who signed it.”

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