Not once before the decision was rendered did the terms “exhaustion of state remedies” or “procedural bar” enter into the case.This passage was written by a former clerk to the 3rd Circuit, who served while Judge Alito did, but not for him.
But that did not stop Judge Alito. When a majority of the court granted Smith a new trial, Judge Alito dissented, raising the two grounds that the prosecution itself had never bothered to raise in any court. Moreover, since the prosecutor never put the court on notice that Smith might not have properly raised the legal issue in the state courts, the prosecutor never pointed out in the record where the judges might look for this omission. Without guidance from the attorneys, Judge Alito must have undertaken the onerous task of poring through every page of the record to determine that Smith had never brought this legal issue to anyone’s attention. That is, since the lawyers for the State of Pennsylvania were unable or unwilling to do their job, Judge Alito would do it for them.
This is judicial activism, plain and simple. He had a conclusion he wanted to reach, and he went to whatever lengths he could to find evidence to support his preconceptions.
This has been my complaint about him all along, that he has internal biases, not necessarily even conscious ones, which taint his judicial temperament.
Whether it's identifying a distinction between family leave meant to care for another or time to care for oneself in order to invalidate a federal guarantee of family leave, his willingness to treat women as chattel, demanding an incredible burden of proof before he'll acknowledge the existence of racial bias in a death penalty jury's selection, or letting machine guns be sold willy-nilly because Congress didn't put in some irrelevant and unnecessary language into a bill, Judge Alito has aimed to serve his own biases, not the needs of society or the facts presented in arguments.
This is why his fellow judges wrote things like:
While [Judge Alito] writes in the name of "constitutional federalism," [he] recognizes that even Lopez abjures such a requirement, but overlooks that making such a demand of Congress or the Executive runs counter to the deference that the judiciary owes to its two coordinate branches of government, a basic tenet of the constitutional separation of powers. Nothing in Lopez requires either Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute.Tell your senators now that you oppose Mr. Alito. Don't wait for the hearings, they'll have made their minds up by then.