Sunday, December 25, 2005

Alito: the ultimate deontologist?

According to the New York Times, Alito Hews to Rules . For example,
In a 2001 case, the judge … sided with a man challenging a murder conviction, this time after finding that the lower court judge had improperly rejected one of the man's arguments. The lower court had correctly dismissed claims that were not properly made, the judge wrote, but incorrectly lumped with them additional claims that the defendant, Robert E. Wenger Jr., should have been allowed to make.
Other cases seem to follow the same patterns. Alito appears to be a strict deonotologist, i.e., someone who judges according to whether the rules were followed, not whether justice was done.

Of course, the problem with this distinction is that it's too easy to make a deontological case for most complex issues. Judges may lean toward arguments that favor their ideological inclinations independent of the strength of the deontological arguments. I'm concerned that Alito will buy a weak deontological argument when he favors its consequentialist outcome but not otherwise.

For example, in tbe case with which the article leads off,
If Samuel A. Alito Jr. had been on the Supreme Court back in January, Ronald Rompilla might well be a dead man.

That month the Supreme Court heard an appeal of a decision, written by Judge Alito for a panel of the Third Circuit Court of Appeals, that upheld Mr. Rompilla's sentence for a murder committed in 1988. The Supreme Court, finding that Mr. Rompilla's lawyers had been ineffective representatives at trial, later reversed the ruling in a 5-to-4 vote.
Apparently, Rompilla's lawyers did a reasonable job. But had they done a somewhat (but not heroically) better job, they would have discovered information that was mitigating for the defendant.

How does one decide a case like that? Alito went with the minimalist argument: the lawyers did a reasonable job. The Supreme Court (in a 5-4 decision) said that justice was not served—and it could have been served without requiring an extraordinary effort on the part of the lawyers. So Rompilla deserves a new trial, at least with respect to whether or not he should have been sentenced to death. (Apparently there is no argument about whether Rompilla actually committed the crime.)

Has Alito been as strictly minimalist in cases in which the results do not match his apparent ideological inclinations? I don't know. The case cited at the beginning of this entry suggests that he is able to side with defendants when they have a good case according to the rules. But in that case, the argument was apparently clear. In Rompilla's case it was a lot murkier. Should a person be condemned to death in a situation in which a bit more work on the part of his lawyers might have saved his life?

I suppose that a strictly deontological perspective is what makes a good judge in the eyes of advocates for a "strict constructionist" judiciary. I'm surprised and disappointed that the public discussion of this issue hasn't clarified this point. It's not such a difficult point. And once the distinction is made—when there is a conflict, should following the rules or an equitable outcome take precedence?—at least the issues become a lot clearer.

I have recently been reading about this distinction. In Ill Gotten Gains, Leo Katz, a law professor at the University of Pennsylvania, claims that the deontological approach is the right one. My previous posting on theologian Lorenzo Albacete suggests that not only is there a distinction between deontological and consequentialist thinking, there is a third option: it's what's in your heart that really counts. Can one make a legal principle out of that? Isn't something like criminal intent required for a criminal conviction? I'm too ignorant of the law to know what that means.

Of course if the deontological perspective is the conservative one, Bush's argument that spying in violation of the law in order to fight terrorism, makes no conservative sense. But then Bush never makes sense. The three arguments in this issue are as follows.
  • Deontological. Bush did or did not break the law. It seems to me (and most liberals) that he did. But Cass Sunstein, a liberal law professor at the University of Chicago Law School, makes the deontological case for Bush.

  • Consequentialist. Are we safer because Bush authorized the wire taps. We are not likely to hear evidence about that. Bush will claim that all the evidence is classified.

  • Intent. What was Bush's intent? Bush's defenders say that his motivation was to protect the country. He didn't want another 9/11. Most people who don't trust him do not believe that this was his primary motivation. They see this and similar actions primarily as exercises in power and arrogance.

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