Trump, gun owners and Jan. 6 rioters: Tough-on-crime Justice Alito displays empathy for some criminal defendants

WASHINGTON — 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 Donald Trump.

Alito, appointed in 2006 by Republican President George W. Bush, has a reputation for being the justice on the court most hostile to criminal defendants. Earlier in his career, he was a U.S. attorney in New Jersey and held several other positions in the Justice Department.

He sides with defendants less frequently than any of his eight colleagues, according to numbers crunched by Lee Epstein, a political scientist at the University of Southern California Gould School of Law.

But in several recent oral arguments in some of the most contentious cases currently before the court, 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. Rulings in all the cases are due by the end of June.

“It just did seem to be a totally different justice to the one we’ve normally seen,” said Brianne Gorod, a lawyer with 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 veteran Michael Dreeben, Alito asked whether prosecutors can be