Justice Alito and the Art of Doing Justice

When I think about the qualities that inform Justice Alito's jurisprudence, a desire to "do justice" easily ranks at the bottom.  Not so for Adam Liptak, who argues that Alito "is alert to injustice, and he is a careful legal craftsman." I don't have a lot to say about Alito's legal craftsmanship, though I imagine that his colleagues might find the comment offensive, distracting, or even silly, if by it Liptak means to draw a distinction between Alito and his fellow justices (note the headline: "When fairness and the law collide, one jurist is troubled."  One jurist?  Shouldn't all jurists be troubled?). I am far more interested in the first quality.

Are we supposed to believe that Justice Alito is "alert to injustice?" What could that possibly mean?

Liptak's choice of examples is telling.  One is the case of a death row inmate who lost his chance to appeal when his lawyer missed a crucial filing deadline (Maples v. Thomas, discussed here).  Another is the case of a client whose lawyer gave him bad advice, which ultimately subjected him to deportation proceedings (Padilla v. Kentucky).  A third is yet another case where the lawyers missed a deadline (Holland v. Florida).  These cases share an obvious, common thread.  They are cases of procedural justice, cases where clients have a right to an appeal taken away through what Alito terms in the Maples case "a series of very unusual and unfortunate circumstances," or else, as in Padilla, the right is exercised poorly, in that the advice of the lawyer subjects the client to "such a harsh consequence" (i.e., deportation after living in the United States for 40 years).

Without question, these are troubling cases. So what makes them interesting is not that Alito is struggling with a legal standard, but that Scalia and Thomas dissented in the first two (and might yet dissent in Maples, which will be decided later this Term).  Also, what to make of the other six justices who joined the majority opinions in Padilla and Holland?  Are they not struggling with the same sets of issues that trouble Justice Alito?  And if not, why not?

Liptak closes the piece with the well-known exchange between Judge Learned Hand and Justice Holmes, which Judge Hand recalled in his 1958 Holmes Lectures at Harvard.  According to Judge Hand, he told Justice Holmes as Holmes walked off on his way to the Court, "Well, sir, goodbye. Do justice!" To which Holmes famously replied, "That is not my job. My job is to play the game according to the rules."  Liptak uses this exchange to illustrate Alito's apparent conundrum; in Liptak's words, "Justice Alito struggles to bridge the gap. He wants to do both."

This is a curious piece on too many levels.  I have already alluded to the notion that singling out Justice Alito in this way is a bit silly.  It is not entirely clear why this is a struggle in Alito's mind but not for the rest of the justices.  But more importantly, why this piece, and why now?  Surely, it cannot be the case that Mr. Liptak is running out of ideas, if the last month is any indication.  This is the beginning of the Court's Term, a time when cases are plentiful and topics abound.  And we are reading about Justice Alito's struggle between "doing justice" and applying the law?  Seriously?

Here's an easy way to show how silly this all is: go back to Liptak's own piece this past Sunday on the latest challenge to racial diversity in college admissions. In order to understand how silly this concept of justice is as applied to Supreme Court justices, take a look at that debate and the role played by "justice" in it.  This is a debate about racial justice; it just so happens that both sides of the debate disagree about what this kind of justice looks like.  And when the five member majority on the Court decides this case, they will apply their very own brand of racial justice, unmoored from constitutional norms as established in 1868.  This will be racial justice understood as personal preferences, no more and no less. You can even call it "living constitutionalism" if it helps.

What to make of Justice Alito and justice, then?  Nothing.  This alleged conflict is only a struggle of Liptak's own making.  This is because Alito is only wanting to have his cake and eat it too.  He wants to be free to do as he wishes within the shallow constraints of his office. 

This is neither new nor peculiar to Justice Alito.