Bench Memos

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Alito and O’Connor: Together Again


As Ed Whelan has ably explicated, left-wing extremists and mainstream media outlets have grossly misrepresented a memo written by the young Sam Alito as an assistant in the Reagan solicitor general’s office regarding Tennessee v. Garner, a case then headed for the Supreme Court. In Garner, the Sixth Circuit invalidated a Tennessee statute authorizing police to use deadly force against fleeing felons who refused commands to stop.

The Memphis Commercial Appeal today carries a news story (I use the term loosely) headlined “Alito supported officer’s right to kill unarmed suspect.” People for the American Way asserts that the young Mr. Alito’s legal analysis was “very out of the mainstream” and showed “disregard of fundamental individual rights.”

This same crowd is leading the drumbeat to replace Justice Sandra Day O’Connor with someone like . . . Justice O’Connor. They want someone who will be like her on “civil rights,” “discrimination based on sex, race, and disability,” and “access to justice.”

Guess whose 1985 Supreme Court opinion in Tennessee v. Garner echoed the analysis in young lawyer Alito’s 1984 memo?

You guessed it: Justice O’Connor.

Justice O’Connor pointed out that the Tennessee statute “reflects a legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public” and that the contrary view (i.e., the one taken by today’s opponents of Judge Alito who profess such admiration for Justice O’Connor) disregards “the serious and dangerous nature of residential burglaries and the longstanding practice of many States.”

Justice O’Connor criticized the invention of a so-called “right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape.”

Sam Alito wrote: “The officer saw an unarmed suspect fleeing from the scene of a type of felony that is not uncommonly accompanied by violence. If he shot, there was the chance that he would kill a person guilty only of a simple breaking and entering . . . . If he did not shoot, there was a chance that a murderer or rapist would escape and possibly strike again. I do not think the Constitution provides an answer to the officer’s dilemma.” Lawyer Alito also acknowledged in his memo that whatever choices states made in such statutes, they are all “based upon difficult moral and philosophical choices and a balancing of values that is peculiarly suited for legislative rather than judicial resolution.”

This isn’t the first time that Justice O’Connor’s opinions have tracked almost precisely the legal analysis of the young Sam Alito that liberals are purportedly enraged over.

To all those who are now criticizing Judge Alito’s 21 year-old analysis: talk to Justice O’Connor about it.


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