Ed may be right that the record is ambiguous, but according to two reports we know that Justice Alito did participate in orders after being sworn in, including another order relating to the same case. We also know that it would be customary to indicate that Justice Alito did not participate if that were the case, and there was no such indication. Assuming this is the case, does it matter? Not really. Justice Alito was on the Court for scarcely a day when this occurred, and the 8th Circuit Court of Appeals (which is the circuit to which Alito is assigned) had voted for the stay 9-1. Assuming that Alito is generally skeptical of many last minute death row petitions, it would certainly be prudent not to dissent on one’s first week on the job, particularly in a case in which one’s vote would not make a difference. So, I don’t think it is fair to see the vote as having any ideological significance. If anything, it is just further evidence that Justice Alito is a cautious, prudent jurist – something his supporters have maintained all along.
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