As If We Needed More Evidence

...that Alito will be a very bad justice on issues involving individual rights, we have Stephen Henderson of Knight Ridder doing the homework for us.

But Knight Ridder's review of Alito's record reveals decisions so consistent that it appears results do matter to him.

"Alito is more conservative than O'Connor; this isn't a hard question," said Rory Little, a Hastings College of the Law professor in San Francisco and a former Supreme Court clerk who praised Alito's credentials. "This isn't a guy who is going to vote in a way that will make anybody on the left happy."

A review of Alito's work on dozens of cases that raised important social issues found that he rarely supports individual rights claims.

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In other areas, Alito often goes out of his way to narrow the scope of individual rights, sometimes reaching out to undo lower-court rulings that affirmed those rights.

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Alito has been particularly rigid in employment discrimination cases.

Many conservative jurists set a high bar for plaintiffs who allege racial, gender or age bias in the workplace, but Alito has seldom found merit in a bias claim.

He has written in at least 18 discrimination cases and has sided with plaintiffs four times, including once when white police officers claimed that Pittsburgh's affirmative action policy unfairly disadvantaged them and another time when a mentally disabled grocery store worker was fired.

Alito also sided with a disabled New Jersey police dispatcher and once with a female employee who said she'd been sexually harassed but couldn't show that she'd suffered monetary loss as a result.

Like his opinions in other areas, Alito's work in discrimination cases is nearly devoid of explosive language or dismissive tones. His arguments have been convincing to his colleagues: Thirteen of his rulings were for the 3rd Circuit majority, meaning that at least one other judge on the court agreed with him.

But in most of the employment discrimination cases, Alito succeeded in applying a standard higher than the Supreme Court requires to plaintiffs' claims, often forcing them to prove that bias was the motivation behind their misfortunes.

In two cases, Alito dissented from 3rd Circuit rulings that allowed discrimination claims to proceed. In one, a racial discrimination case involving a black hotel maid, Alito agreed that the woman had been treated unfairly, but he said that the employer had produced enough evidence to show that the unfair treatment didn't amount to illegal discrimination.

In the second case, a gender discrimination claim, Alito accused the majority of making it too easy for the plaintiffs to get to trial.

Alito's other opinions on discrimination reveal similar skepticism. He has written consistently that plaintiffs failed to prove that bias was the "determinative" factor in their misfortunes and that the courts should resist subjecting employers to second-guessing about routine personnel matters.

In one case, Clowes v. Allegheny Valley Hospital, he overruled a jury verdict in favor of a nurse who claimed age discrimination. Janet Clowes, a nurse who'd worked at the hospital for 30 years, alleged that her employer's harassment effectively forced her to quit her job, called constructive discharge.

Alito's decision to overturn the jury verdict was an aggressive move, seemingly at odds with his usual restraint.

"We recognize that the jury ... presumably concluded ... that (the supervisor) treated Clowes unfairly," Alito wrote. "But it is clear that unfair treatment is by no means the same as constructive discharge."

Alito's record also suggests that the former New Jersey U.S. attorney seldom strays far from his prosecutorial roots and remains reluctant to side with criminal defendants. His tough views on crime and punishment are likely to cement the Supreme Court's rightward movement in that area, particularly when it comes to evaluating the complex federal sentencing laws and the ongoing efforts by Congress to write new criminal laws.

In 60 criminal appeals that resulted in published decisions in which he wrote a majority, dissenting or concurring opinion, Alito sided with a defendant's key argument in 12 cases, most of the time sending a case back to a lower court judge for a new sentencing hearing.

Alito voted to overturn two convictions in those cases, excluding appeals where he left a central conviction intact but set aside other offenses.

But from police searches to the death penalty, Alito has rarely been persuaded to overturn a conviction or sentence.

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Alito has taken part in at least 10 cases involving death row inmates since 1991, and he's sided with the defendants in two and allowed a third capital case to proceed in federal court without taking a position on the merits. That puts him among the 3rd Circuit's most conservative jurists when it comes to the death penalty.

So what we know is this: Alito places before individuals in his court a hight bar. You have been discriminated against; too bad, life is unfair, the employer said it had good reasons to deny you an opprtunity.

You win a jury verdict holding an employer deliberately created intolerable working conditions that forced you to quit; even though a jury finds in your favor, the rich white man in black robes knows better than a jury.

You are a criminal defendant convicted on flimsy evidence that may have been inadmissible; we don't disturb jury verdicts.

All you can hope for with a guy like this is that he gets a taste of his own medicine.