Most federal appellate court cases are decided unanimously. In divided rulings on Judge Alito’s court — the Third Circuit — Judge Alito is often an outlier. He has been the most frequent dissenter among all the Third Circuit judges, appointed by both Republicans and Democrats, since he was appointed in 1990. He has the largest number of dissents written (64). In fact, he has written or joined more than 10% of the 659 dissents issued during his period of service.
Moreover, according to estimates by University of Chicago law professor Cass Sunstein, more than 90% of Alito’s dissents take positions more conservative than those of his colleagues, a much higher percentage than even ultraconservative judges like Michael Luttig. Professor Sunstein has also noted that Alito is “so often more conservative than fellow Republican appointees,” and that “when there is a conflict between institutions and individual rights, Alito’s dissenting opinions argue against individual rights 84% of the time.”
Judge Alito’s past and present colleagues on the Third Circuit — including the six who will be testifying on his behalf and at least fourteen of the seventeen other living judges who will not — have also sharply criticized the legal positions that he has advocated in many of his dissents and divided majority opinions. Notwithstanding whatever testimony some of them may provide as character witnesses for their colleague today, set forth below are critical comments that Judge Alito’s own colleagues have made in actual cases about his opinions, the best evidence of their views of his legal philosophy and judicial opinions.