Judge Alito and the Pauline Thomas Case:

Does Sam Alito care more for the needy than Justice Ginsburg? Is he more sympathetic to the little guy than Justice Stevens? Yes, he certainly is. And I have proof: Thomas v. Commissioner of Social Security, 294 F.3d 568 (3d Cir. 2002).

  In Thomas, a disabled 54-year old woman named Pauline Thomas was laid off from her job as an elevator operator. Pauline had terrible health problems, ranging from irregular heartbeats and high blood pressure to dizziness and fatigue. She applied for disability benefits to help her get by, but the government bureacracy said “no.” A trial court agreed, saying that Mrs. Thomas didn’t deserve the benefits because even though she was disabled, she wasn’t disabled in the right way. Judge Alito steppped in and reversed that decision. Over three dissents, and cutting across the grain of some other courts, Judge Alito ordered the lower courts to try again, this time reviewing her claim with a legal standard that very much favored giving her benefits. However, Alito’s generosity to Pauline Thomas was too much for the Supreme Court to take. The Court reached out and reversed Alito, using a technicality to strip away her benefits. The opinion was written by leading right-wing warrior Antonin Scalia, and it was unanimous. That’s right — Alito proved himself more symathetic and generous than any of the so-called liberal Justices, including Ginsburg, Breyer, and Stevens.

  Now, some of you will object that my description of this case is completely ridiculous. You’ll say I am pretending that Alito was making a political decision rather than trying to follow the law. And you’ll say it is wrong to assume that how Justices later voted in the case is a reflection of Alito’s political views. And of course, you’ll be absolutely right. But here’s a thought experiment: What if all of the votes in the Thomas case had come out the other way? Imagine that Alito had voted to deny benefits to Pauline Thomas, cutting against the grain of existing law, and that the Supreme Court had taken the case and voted unanimously to give Thomas a good shot at prevailing. It’s just a hypothetical, so we’ll never know for sure. But based on the debates in the last 24 hours, I would guess that Thomas v. Commissioner would have become one of the key cases used by Alito opponents to show that he is a right-wing extremist. You can imagine the talking points — “Even Clarence Thomas and Antonin Scalia agreed that the disabled woman deserved her benefits – but not Samuel Alito.”

  Now perhaps there is a plausible argument that Alito’s conservative-seeming decisions should be considered more revealing than his liberal-seeming ones. Lots of people say Alito is conservative, and Alito’s conservative decisions tend to reaffirm that impression. At the same time, I think the Thomas case shows why it helps to approach reports of Judge Alito’s individual decisions with considerable skepticism. It’s very easy to misrepresent what a case was about by substituting a political question for the legal issue the court decided. As always, reader beware.

  UPDATE: This post from Blue Mass. Group makes the same point.

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