Notable new commentaries on Justice Alito’s criminal justice jurisprudence

The Harvard Journal of Law & Public Policy this past week posted a significant number of new commentaries here under the banner The Jurisprudence of Justice Samuel Alito: A Symposium.  Here is how the links to the pieces are introduced:

The essays in this symposium, authored by prominent federal judges and renowned academics, focus in-depth on Justice Alito’s approaches to a wide variety of areas of law.  Versions of most of these essays were presented as addresses at a March 2022 symposium convened by Professor Robert P. George and Yuval Levin, co-hosted by the James Madison Program in American Ideals and Institutions at Princeton University and the American Enterprise Institute. 

Two of the 14 pieces in this collection are focused on Justice Alito’s criminal justice jurisprudence:

• Justice Alito on Criminal Law – Kate Stith
• Justice Alito on Criminal Procedure – Hon. Andrew S. Oldham

The piece by Judge Oldham mentions some post-Booker cases in passing, and the piece by Professor Stith discusses the sentencing/criminal history stories around the Armed Career Criminal Act at great length. Both pieces stress what they call Justice Alito’s ” pragmatism” in this arena.

These pieces generally fail to note that Justice Alito’s version of criminal justice “pramatism” seems to mean that the police and prosecutors, and not the individual, will almost always prevail.  This 2017 empirical article detailed that Justice Alito had not once voted in favor a Fourth Amendment litigant in a divided case.  I have not been able to find a similar accounting for other parts of the SCOTUS criminal docket, but I have a hard time recalling divided cases in any criminal justice arena in which Justice Alito voted for the criminal defendant.  That reality leads me to think of Justice Alito’s “pragmatic” criminal justice jurisprudence to be most fundamentally about prioritizing state and federal criminal powers over individual rights and protections.