Justice Alito's heresy

Justice Alito's heresy
© New York Times/Pool

September was an unusually busy month for speech-making, interviews and public appearances by Supreme Court justices. In the last several weeks, Justices Amy Coney BarrettAmy Coney BarrettBiden's Supreme Court reform study panel notes 'considerable' risks to court expansion Couric says she edited Ginsburg interview to 'protect' justice from criticism Why Latinos need Supreme Court reform MORE, Stephen BreyerStephen BreyerBreyer: Supreme Court 'fallible,' but has served US 'pretty well' Supreme Court considers Kentucky AG's power to defend abortion restriction Justice Alito's heresy MORE, and Clarence ThomasClarence ThomasSotomayor says recent changes were made because male justices interrupted female colleagues Why Latinos need Supreme Court reform ESPN removes Sage Steele from programming after controversial remarks MORE have used these occasions to preach the orthodox message that the court is above politics.

Despite their sharp philosophical differences, Barrett, Breyer, and Thomas seemed to be reading from the same liturgy.

Responding to eroding public approval of the court and anticipating a series of controversial cases in the upcoming term, these justices spread the gospel of judicial neutrality, independence and impartiality. Justices do not make decisions to please one side or the other in this country’s divisive culture wars, they said.

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As Breyer put it in a Sept. 13 Washington Post interview promoting his new book, “When a judge puts on that robe, he’s not a junior-league politician.”

That same day, Barrett echoed Breyer’s message with language that was even more blunt: “My goal today,” she said, “is to convince you that this court is not comprised of a bunch of partisan hacks.” Three days later speaking to a friendly audience at Notre Dame University, Thomas claimed that even in the most controversial cases the justices are not ruling based on “personal preferences.” 

These justices hoped to speak unambiguously.

But last Thursday, when Justice Samuel AlitoSamuel AlitoSen. Whitehouse blasts Alito speech: 'You have fouled your nest, not us' Breyer: Supreme Court 'fallible,' but has served US 'pretty well' Why Latinos need Supreme Court reform MORE entered the fray and added his voice to the chorus, his message was heretical, not orthodox. While Alito’s speech initially looks like just another effort to bolster the court’s standing, what he said undermined the messages of his colleagues and came perilously close to violating the canons of ethics and propriety that govern judicial conduct.

The New York Times rightly labelled Alito’s speech “combative” because in it Alito staked out an overtly partisan position on one side of our culture wars.

Alito offered a strident defense of the Court’s controversial “shadow docket,” a procedure by which it short-circuits normal procedure and decides cases without full briefing and argument. The court’s conservative majority has increasingly used it to accomplish its aims.

The justice also showed no reticence about commenting on three recent, high-profile cases. As Politico reported, “They include a decision earlier this month allowing a controversial Texas abortion ban to go into effect, a ruling last month requiring the Biden administration to reinstate the Trump-era Remain-in-Mexico policy for many who are present at the border seeking asylum, and another decision from August blocking enforcement of a coronavirus-related, federal ban on evictions.”

Alito went out of his way to offer a bitter attack on the media and on critics of those decisions. “The media and political talk about the shadow docket,” Alito claimed, “is not serious criticism.” Drawing on a familiar culture wars playbook, Alito opined that “journalists may think we can dash off an opinion the way they dash off articles.”

Impugning their motives and citing no evidence, Alito alleged that critics of the shadow docket are making “unprecedented efforts to intimidate the court or damage it as an independent institution.”

For a Justice to publicly wade into the controversy surrounding decisions so recently issued by the court was, as Politico noted, “rather unusual… In addition, at least two of the disputes seem likely to come before the court in some form again in the coming months.”

Alito’s remarks seem to violate the spirit, if not the letter, of Rule 2.10 of the Model Code of Judicial Conduct. That rule prohibits judges from making “any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.” It goes on to state that judges should not make statements concerning cases that “are likely to come before the court.”

Canon 5 of that same code enjoins judges to refrain from “inappropriate political activity.”

Thursday’s speech was not the first time that Alito has made statements that skirt the ethical line and stoke partisan divisions.

In November 2020, he delivered remarks before the conservative Federalist Society in which he openly criticized a series of policies and judicial decisions. He said that they grant too much power to government agencies charged with protecting public health — and threaten religious liberties already under assault by secularist forces entrenched in elite law schools and executive agencies at the state and federal level.

Also in that speech, Alito freely talked about issues then on the Supreme Court docket.

As Dennis Aftergut and I pointed out at the time, Alito’s public statements did not square with what he said during his 2006 confirmation hearings when he promised that his political views would be irrelevant to his work on the high court. He contended there is a stark difference between being a judge and an advocate who “has the goal of achieving the result that the client wants within the bounds of professional responsibility.” A judge, he said, “doesn't have an agenda, and a judge has to follow the law.”

Indeed, Alito’s speeches lay out his agenda and serve to further solidify his position as the leader of what Linda Greenhouse has called the Supreme Court’s “grievance conservatism” bloc. Grievance conservatism is “conservatism with a chip on its shoulder, fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.”

Throughout most of American history, Supreme Court justices, with rare exceptions, spoke only through their judicial opinions. They seemed eager to avoid the limelight.

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That reluctance has surely changed.

As last month’s spate of public appearances suggests, many justices now are eager to be heard — and applauded for their off the bench pronouncements.

But among this group Alito stands out. His speeches evidence what political scientist Keith Bybee calls the deep “hypocrisy” of justices who modestly claim to have no political agendas in order to get confirmed and then, like Alito, behave in predictably partisan ways once they are seated on the highest court in the land.

While Barrett, Breyer, and Thomas appeal to seemingly persuadable moderates, Alito’s heresy borrows from a Trump-like strategy of rallying the conservative political base. It does little to heal rifts on the court or to buttress its legitimacy. Instead, in a way that damages the court, Alito uses his public statements to reassure movement conservatives that they have a steadfast champion on the bench.

Austin Sarat is the William Nelson Cromwell Professor Jurisprudence and Political Science at Amherst College. He is author of numerous books on America's death penalty, including "Gruesome Spectacles: Botched Executions and America's Death Penalty." Follow him on Twitter @ljstprof.