Conservative Justice Samuel Alito, a former U.S. Attorney with a long history of voting in favor of prosecutors, has shown signs of empathy for defendants in recent cases involving gun owners, Jan 6. rioters and former President Trump. Alito has a reputation for being the justice on the court most hostile to criminal defendants.
He sides with defendants less frequently than any of his eight colleagues, says Lee Epstein, a political scientist at the University of Southern California Gould School of Law. In several recent oral arguments in contentious cases, Alito has notably raised questions about the Justice Department’s decisions to prosecute certain cases, expressed sympathy for Trump’s argument that former presidents should be immune from prosecution, and aired concerns about gun owners being charged, reports NBC News.
“It just did seem to be a totally different justice to the one we’ve normally seen,” said Brianne Gorod of the left-leaning Constitutional Accountability Center. His comments seem to suggest that Alito “certainly can have empathy, but it is only for certain categories of people who come before the court,” she added. One exchange during the April oral argument on whether Trump should be immune from prosecution for his attempts to overturn the 2020 election results jumped out to some observers. Questioning Justice Department lawyer Michael Dreeben, Alito asked whether prosecutors can be trusted not to seek charges in frivolous or politically charged cases. He referred to the “old saw about indicting a ham sandwich,” a tale about how easy it is for prosecutors to convince grand juries to greenlight a prosecution. “You have a lot of experience in the Justice Department,” Alito told Dreeben. “Do you come across a lot of cases where the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so?” “There are such cases,” Dreeben responded. “Every once in a while there’s an eclipse too,” Alito joked.
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