He is alert to injustice, and he is a careful legal craftsman — and sometimes those two qualities collide. About once a term, he muses about the conflict from the bench.
Two weeks ago, for instance, the Supreme Court considered the case of Cory R. Maples, a death row inmate in Alabama whose lawyers had missed a deadline to file an appeal. “Mr. Maples lost his right to appeal,” Justice Alito said, “through no fault of his own, through a series of very unusual and unfortunate circumstances.”
But a ruling for Mr. Maples, Justice Alito continued, could require the court to adopt principles that would affect “many, many cases” and would “substantially change existing law.” He said he was reluctant to impose new burdens on government officials and allow clients to second-guess their lawyers’ decisions in order to provide relief to Mr. Maples.
Justice Alito’s candor illuminates a tension in the work of the Supreme Court. The justices hear perhaps 80 cases a term, a vanishingly small slice of the millions of lawsuits and prosecutions the lower courts consider every year.
Their job, the justices say, is not “error correction” in particular cases. Rather, the court’s task is to establish legal principles that will apply in countless cases.
Yet the cases the justices do hear concern actual disputes involving actual people, some of whom have had very bad luck.
Consider Mr. Maples. A court clerk in Alabama sent two copies of a crucial court order in his case to his lawyers in New York, who had left that firm. The firm’s mail room returned the envelopes unopened and marked “return to sender.” The court clerk did nothing more, and the deadline for an appeal passed.
At the argument on Oct. 4, Justice Alito considered the principles that would allow the court to rule for Mr. Maples “in this capital case, which is sui generis.” One would be to adopt “a rule that places upon a clerk of the court a constitutional obligation to serve counsel with important documents.” The other would be to say that a lawyer’s conduct can sometimes be said to be so derelict as to amount to abandonment of the client.
Neither approach seemed to appeal to Justice Alito, who joined the court in 2006. He did not say so, but he had been here before.
“The facts here are quite extreme,” he said last year to a lawyer for Albert Holland, a death row inmate in Florida, “but I am troubled by where you think the line should be drawn.”
It was another missed-deadline case, and the court voted 7 to 2 to require an appeals court to have another look at it. (Justices Antonin Scalia and Clarence Thomas dissented.)
The majority said little more, though, than that the appeals court had used too restrictive a standard in deciding whether to stick to the deadline. That left Justice Alito unsatisfied.
“Although I agree that the court of appeals applied the wrong standard,” Justice Alito wrote in a concurrence joined by no other justice, “I think that the majority does not do enough to explain the right standard.”
He proposed some principles that could be used in other cases. Courts may waive deadlines, he suggested, when two things have happened: the lawyer stopped working, effectively abandoning the client, and the client promptly tried to set matters right. That is not the only possible approach, of course, but it has the virtue of clarity, of providing guidance to the lower courts.
The same dynamic was at work in the case of Jose Padilla, a native of Honduras who had lived in the United States for 40 years when he was arrested in Kentucky with more than 1,000 pounds of marijuana in his truck. Mr. Padilla said he pleaded guilty to drug trafficking based on bad advice from a lawyer. The lawyer falsely told him, Mr. Padilla said, that he would not be deported after he served his prison sentence.
“Your argument has an appeal,” Justice Alito told Mr. Padilla’s lawyer at the argument in 2009, “because removal is such a harsh consequence, particularly for someone like your client who had been in the United States for a long time.”
But, again, Justice Alito worried about the consequences of a decision for Mr. Padilla. Would all sorts of guilty pleas be subject to challenges based on after-the-fact assertions of bad advice? “I mean,” Justice Alito asked, “how are those cases going to be handled?”
Mr. Padilla won. As in the Holland case, the vote was 7 to 2, with Justices Scalia and Thomas dissenting. The majority said that criminal lawyers had an obligation to advise clients about at least some consequences of their pleas. Justice Alito issued another concurrence.
He complained that the majority’s “vague, halfway test will lead to much confusion and needless litigation.” He proposed instead that only “affirmative misadvice” about deportation should count, which is, if nothing else, a clean line.
In a 1958 lecture, Judge Learned Hand, a towering presence on the federal appeals court in New York, recalled saying goodbye to Justice Oliver Wendell Holmes Jr. as the justice left for the Supreme Court.
“I wanted to provoke a response,” Judge Hand said, “so as he walked off, I said to him: ‘Well, sir, goodbye. Do justice!’ ”
Justice Holmes gave a sharp retort: “That is not my job. My job is to play the game according to the rules.”
Justice Alito struggles to bridge the gap. He wants to do both.