Is Alito Trying To Prove Obama Wrong?

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THE PLANK MAY 27, 2008

Is Alito Trying To Prove Obama Wrong?

Barack Obama's floor statement on the confirmation of Justice Alito, January 26, 2006:

If there is a case involving an employer and an employee and the
Supreme Court has not given clear direction, he'll rule in favor of the
employer.

There are exceptions to every rule, but Obama might be pleasantly surprised to learn that in the two employment-discrimination cases in which the Court handed down rulings today, Justice Alito joined the majority in siding with the employees. He wrote the majority opinion in one, and signed onto Justice Breyer's majority opinion in the other. Justices Scalia and Thomas dissented in both cases; Chief Justice Roberts dissented in one. The liberal advocacy group People for the American Way sounds a bit baffled by this turn of events. Who knows, maybe Alito and Justice Kennedy had their feelings hurt when The New York Times called them out by name in its editorial condemning last year's ill-conceived discrimination decision in the Ledbetter case.

Update: Emily Bazelon points out that this is more evidence for Linda Greenhouse's observation that 5–4 rulings with Kennedy as the swing vote seem to be on the wane this year, for whatever reason.

--Josh Patashnik

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