Rule of Law

Trump, gun owners and Jan. 6 rioters: Tough-on-crime Justice Alito displays empathy for some criminal defendants

In recent Supreme Court arguments, the former prosecutor has asked skeptical questions about criminal cases against former President Donald Trump, Jan. 6 defendants and gun owners.

WASHINGTON — Conservative Justice Samuel Alito, a former U.S. attorney with a long history of voting in favor of prosecutors, has shown signs of empathy for defendants in recent cases involving gun owners, Jan 6. rioters and former President Donald Trump.

Alito, appointed in 2006 by Republican President George W. Bush, has a reputation for being the justice on the court most hostile to criminal defendants. Earlier in his career, he was a U.S. attorney in New Jersey and held several other positions in the Justice Department.

He sides with defendants less frequently than any of his eight colleagues, according to numbers crunched by Lee Epstein, a political scientist at the University of Southern California Gould School of Law.

But in several recent oral arguments in some of the most contentious cases currently before the court, Alito has notably raised questions about the Justice Department’s decisions to prosecute certain cases, expressed sympathy for Trump’s argument that former presidents should be immune from prosecution, and aired concerns about gun owners being charged. Rulings in all the cases are due by the end of June.

“It just did seem to be a totally different justice to the one we’ve normally seen,” said Brianne Gorod, a lawyer with the left-leaning Constitutional Accountability Center. His comments seem to suggest that Alito “certainly can have empathy, but it is only for certain categories of people who come before the court,” she added.

One exchange during the April oral argument on whether Trump should be immune from prosecution for his attempts to overturn the 2020 election results jumped out to some observers.

Questioning Justice Department veteran Michael Dreeben, Alito asked whether prosecutors can be trusted not to seek charges in frivolous or politically charged cases. He referred to the “old saw about indicting a ham sandwich,” a tale about how easy it is for prosecutors to convince grand juries to greenlight a prosecution.

“You have a lot of experience in the Justice Department,” Alito told Dreeben. “Do you come across a lot of cases where the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so?”

“There are such cases,” Dreeben responded.

“Every once in a while there’s an eclipse too,” Alito joked.

Neil Siegel, a professor at Duke University School of Law, said it struck him that someone with Alito’s background as a prosecutor would make such remarks.

“It’s really quite puzzling that the most pro-government, anti-criminal-defendant justice is the one who when it comes to President Trump being a criminal defendant is willing to slander the career attorneys at the U.S. Department of Justice,” he said in an interview.

Over the years, Alito has voted in favor of criminal defendants just 20% of the time, according to Epstein. In some cases in which even other conservatives sided with defendants, Alito was on the other side.

One such case was a 2009 ruling authored by staunch conservative Justice Antonin Scalia that said defendants have a right to question lab technicians who analyze evidence the prosecution hopes to rely on at trial.

In another 2009 case, Alito dissented when the court ruled that police cannot search a vehicle without a warrant after an arrest is made.

Four years later, Alito was in the majority and Scalia in dissent when the court ruled that states can conduct DNA testing during arrests without requiring a warrant.

Alito struck a much more defendant-friendly tone in the recent oral arguments.

In one, Alito was among several justices who questioned the Justice Department’s use of an obstruction statute to prosecute people involved in the Jan. 6, 2021, attack on the Capitol. He suggested that if the court allows it to apply to Jan. 6 defendants, prosecutors could also seek to use it against people involved in peaceful demonstrations, such as those that take place in the courtroom from time to time.

In another case on a federal ban on gun accessories called “bump stocks” that allow a semiautomatic rifle to file more quickly, Alito said it would be “disturbing” for people to be prosecuted for owning them when lower courts have questioned the ban’s lawfulness, even if the Supreme Court ultimately upholds it.

Alito also appeared concerned in a separate gun case about the due process rights of gun owners who face having to give up their firearms, and risk prosecution if they don’t, when accused of domestic violence.

What would happen, he asked, if people under domestic violence protective orders are themselves under threat?

“So the person thinks that he or she is in danger and wants to have a firearm. Is the person’s only recourse to possess the firearm and take their chances if they get prosecuted?” he asked.

At one point, he even cited a friend-of-the-court brief filed by lawyers in California who represent criminal defendants.

Alito’s defenders say there is a common thread in his criminal jurisprudence.

Kate Stith, a Yale Law School professor, wrote in a recent article that Alito’s approach “reflects his aversion to reasoning that will leave the Supreme Court … out on a limb, in a place that threatens to undo social understanding and order.” (Stith could not be reached for comment.)

Sherif Girgis, a former Alito law clerk who is a professor at Notre Dame Law School, said in relation to Alito’s recent comments that it is “hard to draw firm conclusions from oral argument,” noting that the immunity case in particular “raises extremely unusual constitutional questions.”

But to those critical of Alito, his selective empathy ties him solidly with the kind of conservative cultural grievances that they think helped Trump become president.

In 2017, Siegel wrote an article in which he called Alito “the primary judicial voice of the many millions of Americans who appear to be losing the culture war.”

Now, he puts it slightly differently, saying Alito is “the most MAGA Republican justice — and that is a horrible, horrible thing to say about any jurist.”