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Light moments, deep thinking in Alito’s visit to Buffalo

Interim Dean James A. Gardner, Justice Samuel Alito Jr., and Daniel C. Oliverio ’82

Published November 16, 2016

“The original meaning, the original understanding in history can take us only so far and what we may end up with is the obligation to do what judges always do, which is to exercise judgment and apply the rule to the world in which we live.”
Samuel Alito Jr. , Supreme Court Justice

Supreme Court Justice Samuel Alito Jr.’s visit to Buffalo afforded a rare personal glimpse into the mind of one of the nation’s most powerful jurists.

There was a lot of laughter, too.

Alito proved to be personable, even witty, in front of an invitation-only crowd at Shea’s Performing Arts Center on Oct. 20. The event, sponsored by the UB School of Law and Hodgson Russ LLP, was moderated by the School of Law’s interim dean, Professor James A. Gardner, and Daniel C. Oliverio ’82, chairman of the law firm.

The students, faculty, judges and alumni in the audience heard a thoughtful and wide-ranging give-and-take from the Shea’s stage. Topics ranged from personal stories of the justice’s career to his thoughts on judicial philosophy, the workings of the court and the nominating process for federal judges.

In response to Gardner’s question about whether he has a particular audience in mind when he writes an opinion, Alito said, “It’s not something that I think about consciously. Contrary to what most people think, most Supreme Court cases are not the sort that get all the headlines and that people who are not lawyers are aware of and talk of. Most of them are pretty technical and not read very widely.

“But there are some cases in which I think this is the sort of thing that non-lawyers may be interested in, and then maybe I would try to make it more accessible to a broader audience. I don’t think that I’m trying to get praise from some group, and actually I think it’s dangerous for judges to think too much about that. Sometimes I’ve been asked, what would you like your legacy to be? I think it’s really bad for a judge to start worrying about that. We are supposed to be independent – not just from overt influences but also from more subtle influences, such as wanting to be thought of well by the media, or legal academia, or history.”

Asked whether there was one defining trait of a successful judge, Alito said: “The most important characteristic of a judge is the ability to make decisions. There have been a few judges who have been appointed to the bench, after distinguished careers in other walks of the legal profession, who have real trouble making decisions. If you are an attorney and representing a client, the constraints of your representation point you in a particular direction. You don’t actually have to decide how a matter should be resolved. So if you can’t do that, you’re going to have a miserable time as a judge.”

Gardner noted that Alito has often been the sole dissenter in Supreme Court opinions. Does that, he asked, take courage?

“If I think I’m right and it’s a matter of some importance, it’s my responsibility to write an opinion saying what I think,” Alito said. “I don’t think it takes a lot of courage. If you’re sure, you should go ahead, and I think you’re actually performing a service for the court. Dissenting opinions point out potential weaknesses in the arguments that the majority has adopted. It requires the majority to rethink certain things, and it can result in an improvement in the opinion of the court.”

The nominating and confirmation process for federal judges has been much in the news, and Alito was asked to give his thoughts on how it’s working.

“For anybody nominated to the Supreme Court, it’s almost guaranteed to be miserable,” he said to laughter. “For those who are nominated to the courts of appeals and the district courts, the image that has come to my mind is from a nature show. You may see a herd of antelopes peacefully nibbling on grass in the Sahara and then a lion emerges and starts to chase them. All of them are going to get away except one poor antelope, and he’s going to be devoured alive by the lion. That’s sort of what happens to nominees to the lower courts. Most of them are going to get through, but a few are going to be pounced upon and really have a bad day.”

Alito also reiterated his opposition to the introduction of cameras in the Supreme Court. “I do think it would be a mistake,” he said. “The main reason for having oral arguments is to help the court make a decision. I firmly believe, and I think my colleagues believe, that if there were video recordings of our arguments it would change the nature of the arguments and make them less valuable as a tool in the decision-making process. Because I don’t think anybody behaves the same way when he or she knows that the television cameras or video cameras are running. The temptation to produce a sound bite for the media is overwhelming, and the arguments would become more of a show for the audience rather than a tool for the court.”

He also noted that the court routinely releases audio recordings and transcripts of all oral arguments.

In his Senate confirmation hearings in 2006, Alito identified himself with the mode of constitutional interpretation called originalism. Pressed by Gardner to say more about his judicial philosophy, he gave a nuanced view.

“The original meaning, the original understanding in history can take us only so far,” the justice said, “and what we may end up with is the obligation to do what judges always do, which is to exercise judgment and apply the rule to the world in which we live. The meaning of the Constitution does not change, but the world changes, and therefore the application of the rules to events in the real world changes.”