The Tax Opinions of Judge Alito: "Giulianito," Not "Scalito"

Lee A. Sheppard (Contributing Editor, Tax Analysts) has published The Tax Opinions of Judge Alito, 109 Tax Notes 721 (Nov. 7, 2005), also available on the Tax Analysts web site as Doc 2005-22506, 2005 TNT 215-5.  Here is part of the Introduction:

No matter what their views on the social issues that politicians on both sides use to distract voters from falling living standards, our readers will find a man after their own hearts -- a nitpicking lawyer who concentrates on statutory wording and parses legislative history. But Judge Alito is a former federal prosecutor, and it shows. He's a hardnose who tends to favor the government. However, unlike some Tax Court judges, he will not reargue the IRS's case for it and will hold the agency to its mistakes.

We found more than 20 tax opinions by Judge Alito, so we have a pretty good idea how he would decide federal tax cases -- assuming that the Roberts Court would accept any more federal tax cases than the Rehnquist Court did. Many of Judge Alito's tax opinions concern the technical grind of the less-than-glamorous end of tax practice -- investment tax credits, fuel tax refunds, innocent spouse relief. And because we are in the Third Circuit, we do find a fair amount of tax crime.

"Scalito?" In his social views, undoubtedly. But not in his statutory interpretation. Judge Alito gives free rein to legislative history, previous versions of the pertinent statute, colloquy, whatever is available in interpreting statutes. "Giulianito" might be a more accurate sobriquet for this former federal prosecutor. No, he's not flashy or publicity seeking or serially married, but the ex- prosecutor in Judge Alito is always evident. He's a solid technician who picks and chooses his arguments based on where he wants the law to go. Unlike Chief Justice Roberts, he does not let the law lead him.