Samuel Alito apparently hasn’t learned that saying nothing may be the best way of saying something significant. Or that being indifferent, or feigning indifference, is a sign of real power. Or that Supreme Court Justices should stay above the fray.
Instead, in his recent off-the-Court behavior, Alito, who was appointed to the Supreme Court in 2005 by President George W. Bush, is channeling his inner Donald Trump and showing himself to be the Trumpiest Supreme Court Justice.
Like the former President, he is a leading practitioner of what the journalist Linda Greenhouse calls “grievance conservatism.” Grievance conservatism, Greenhouse explains, is “fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.”
Like Trump, Alito regularly and loudly complains about being treated unfairly. He blames his problems on others and sees himself as the victim of coastal elites and the media.
He acts like a populist in judicial robes.
But judicial opinions are inadequate to communicate with his constituency in and beyond the legal profession. That is why Alito goes public and airs his grievances in ways that are unseemly for a Supreme Court Justice.
As Margaret Talbot observed in The New Yorker in September 2022, “Alito now seems to be saying whatever he wants in public, often with a snide pugnaciousness that suggests his past decorum was suppressing considerable resentment.”
Last week, imitating Trump, who broadcast news of his indictments before they were announced, Alito took to the opinion pages of the Wall Street Journal to let the world know that ProPublica would be publishing a story about his all-expenses-paid Alaska fishing trip with billionaire and Republican mega-donor Paul Singer, and he did this several hours before the story was posted.
In substance, if not in style, his op-ed followed the Trump playbook. Never apologize, deny everything, blame others. It showed him to be a judge without good judgment and a populist out of touch with the lives that most Americans live.
This is not the first moment in Alito’s grievance-conservative oeuvre, however.
In 2010, he caused a considerable stir during President Barack Obama’s State of the Union Address when he mouthed “Not true” in response to Obama’s assertion that the Supreme Court’s decision in Citizens United “reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.”
This was an early indication that Alito chafed at the expectation that Supreme Court Justices should not engage in partisan disputes.
After Obama’s speech, he portrayed himself as a victim of the occasion and voiced his resentment that members of the Supreme Court have to go to the State of the Union and “sit there like potted plants.” He complained that State of the Union speeches had “‘become very political events and it’s very awkward for the justices,’ who are not expected to show any response to any politically charged rhetoric.”
His supporters joined him in that complaint and put the responsibility on Obama for casting the first stone. As Bradley A. Smith, chairman of the Center for Competitive Politics, noted in The Corner blog on Nationalreview.com, “The President’s swipe at the Supreme Court was a breach of decorum, and represents the worst of Washington politics — scapegoating ‘special interest’ bogeymen for all that ails Washington in attempt to silence the diverse range of speakers in our democracy.”
Since then Alito has shown his displeasure by boycotting the State of the Union address.
In 2020, Alito took what Talbot called the “unusual, and perhaps unprecedented (step) for a modern Justice” of going public to unburden himself of a long list of legal, political, cultural and personal grievances.
He did so in a speech before the conservative Federalist Society. There he freely talked about issues already on the Supreme Court docket.
In a preview of things to come, Justice Alito seemed untroubled by skating up to the line of ethics rules requiring judges to remain impartial, to avoid any appearance of bias, and to avoid public comment on the merits of any pending matter.
Channeling Trump’s hostility to the press, he expressed concern that the media would take his words and make them mean something different from what he intended. He took a Trump-like swipe at the “swamp” in Washington, DC.
As Alito put it, “I’m going to say something that I hope will not be twisted or misunderstood, but I have spent more than 20 years in Washington. So I’m not overly optimistic.”
And displaying his populist proclivities, he sniped at the coastal elites, suggesting that their pernicious influence was a COVID-like “infection.”
As he put it, “When the constitutionality of COVID restrictions has been challenged in court, the leading authority cited in their defense is a 1905 Supreme Court decision called Jacobson v. Massachusetts. The case concerned an outbreak of smallpox in Cambridge, and the court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading.”
“Now,” Alito continued, “I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge stayed in Cambridge….”
Alito made headlines again in 2022 when he used the keynote speech at the Notre Dame conference on religious liberty to further weave what Greenhouse calls a “persecution narrative” about himself and the things that he values.
The speech got a lot of attention because it was his first public appearance after the Court overturned Roe v Wade in the Dobbs decision.
Here again, Alito seemed oblivious to, or unconcerned about, what Slate contributors Dahlia Lithwick and Mark Joseph called “the breathtaking conflict of interest at work when a justice gives faith-based speeches at faith-based events sponsored by faith-based parties who file briefs before the court.”
He followed in Trump’s footsteps and tried to stir up religious fundamentalists by portraying religious liberty as severely threatened by what he called “growing hostility to religion.” He showed Trump-like unwillingness to ignore any slight when he went out of his way to mock leaders from other nations who had criticized his Dobbs opinion.
“I had the honor this term of writing I think the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders,” Alito said.
A CNN report noted that “Dripping with sarcasm, Alito told the audience that what really ‘wounded’ him was when Prince Harry, the Duke of Sussex, ‘addressed the United Nations and seemed to compare ‘the decision whose name may not be spoken’ with the Russian attack on the Ukraine.”
If making headlines and picking fights gives Alito pleasure, his Wall Street Journal apologia certainly filled the bill.
In that piece, he did not deny that he did exactly what the ProPublica piece chronicled in describing the lavish favors he had accepted. Instead, the Justice insisted that no reasonable person could think that it was improper for him to fly in a private jet to a luxury resort where he would be wined and dined by a partisan billionaire with business before the Supreme Court.
“No such person,” Alito asserted “would think that my relationship with Mr. Singer meets that standard.”
I guess in Alito’s world anyone who would deign to criticize him cannot be doing so in good faith. And no doubt he would say that commentators on Bloomberg Law, The Hill, the Editorial Board of The Washington Post, and many others who criticized him for his ethical insensitivity are not reasonable persons.
Alito used another Trumpist strategy of claiming amnesia when he was called on to explain an uncomfortable association with someone like Paul Singer.
“My recollection,” Alito says, “is that I have spoken to Mr. Singer on no more than a handful of occasions, all of which (with the exception of small talk during a fishing trip 15 years ago) consisted of brief and casual comments at events attended by large groups.”
How many of us would accept an invitation worth at least $100,000, like the one Alito accepted, from someone they barely knew?
Ever bold, Alito asked his readers to believe that accepting such an invitation was almost a charitable act, or at least one that exemplified his commitment to honoring the proverb “waste not, want not.”
“I was asked,” Alito wrote with a straight face, “whether I would like to fly there in a seat that, as far as I am aware, would have otherwise been vacant.”
Alito’s Trumpiness endangers the health of the Supreme Court and the broader political culture in this country. Like the man he channels, Alito seems to think that the legal and ethical principles that he comfortably applies to the rest of us just don’t apply to him.
When the tables are turned and he is called to account, his bile flows and his resentments pour forth.