Alito vs. ThinkProgress Redux


ThinkProgress responds to my critique of their anti-Alito talking points from the other day. To my general point that, in each case, they make broad claims that can't be supported by the specific cases they cite, they reply:

Hit and Run's argument has some intuitive appeal but, in the end, misses the point. When a judge consistently applies to law to the facts in a certain way it has broad policy impacts.

Fair enough in principle, and the Cass Sunstein piece they link to on trends in Alito's dissents bolsters the point. But again, I think if you look at the specific rulings at issue, you'll find the rulings are sufficiently narrow and specific to the fact patterns that in this instance the generalizations are unwarranted; you'd need a bigger sample set to justify the claims.

I can think of at least one issue where looking at a broader set of cases reveals that there isn't the kind of pattern ThinkProgress wants to assert. They aver that Alito's argument for greater deference to lower immigration judges in assessing the credibility for asylum petitioners revealed a general hostility to immigrants. But we don't appear to have a consistent pattern of ruling against such claims:

According to at least one former Alito clerk, Nora Demleitner, he is not the rabid conservative he's so far been made out to be. Demleitner cites Alito's majority decision in the 1993 case Fatin v. INS, in which Alito held that an Iranian woman could be granted asylum if she could show that complying with her country's "gender specific laws and repressive social norms" would be deeply abhorrent to her.

They and Sunstein have a point about extrapolating from patterns; my point was precisely that they seemed to be making broad inferences from individual cases, where it wasn't clear how fact-dependent the ruling in the instance was.

Now, to illustrate their point, ThinkProgress quotes the majority in
Bray v. Marriot, the employment discrimination case from which Alito dissented:

For example, if Alito's interpretation of the law in Bray v. Marriott was accepted it would "immunize an employer from the reach of Title VII [even] if the employer's belief that it had selected the 'best' candidate was the result of conscious racial bias." In other words, racial discrimination would be allowed.

All I can say here is click the link, read the dissent, and decide whether you think the majority's characterization of what it entails is remotely fair. As I parse the majority argument, here's what they're saying: Alito argues that so long as Marriot was genuinely trying to promote the "best" candidate, they should prevail on their motion for summary judgement—which the lower court had awarded them. Now, apparently the evidence on record was such that you could make a case for Marriot having erred in their choice. But, says Alito, the point at issue for the discrimination case is whether their purported attempt to select the best candidate was a sham, not whether it was optimal. And he concludes that in this case, there wasn't good reason to doubt Marriot had tried to promote the best candidate, whether or not you think they chose wisely. "A ha!" says the majority, "but what if Marriot's conception of 'best' included 'non-black'? Then they could honestly be looking for the 'best' candidate as they define it, and you'd always have summary judgement in favor of the employer!"

Now, a little hyperbole from both majorities and dissents about what the other sides position would lead to is par for the course. But if I'm understanding the majority's reading here correctly, it betrays a total lack of interpretive charity: It is crystal clear from Alito's dissent that when he talks about an employer genuinely seeking the "best" candidate, he means to exclude bigoted constructions of what counts as "best." Maybe they mean something a little more subtle: That it's always possible that a judgement call about the "best" candidate is influenced by racial prejudice. Well, it surely is. Alito's opinion seems to be saying: "Fine, that's always possible, but to get to trial, you need some reason to think it was actually the case, and that's different from offering some reason to think the employer didn't make the objectively best judgement call and then suggesting without further evidence that prejudice might have been the reason." That doesn't strike me as an impossibly high bar to meet, or as one that would spell the end of employment discrimination suits.

Anyway, one thing I'm curious about is how the case actually turned out on remand—something a quick Google search failed to reveal. If there was evidence of bias that Alito ignored, that might be suggestive.