Reviews | Samuel Alito: An Angry Man

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In the popular imagination, Brett Kavanaugh is the angry judge – thanks to his searing opening statement during his confirmation hearing in 2018. But Kavanaugh’s reasoning from the bench is legalistic, his tone measured, his academic interests current towards technique, even esotericism. Not so Alito: In the Dobbs draft, in his earlier abortion rulings, in his affirmative action opinions and elsewhere, there is a deeply personal and emotional quality that other judges lack. roe deer is “grossly false and deeply damaging”. Same-sex marriage should not be recognized as a constitutional right because such a ruling “will be used to defame Americans… who don’t want to accept the new orthodoxy.” The hypothetical risk of critical speech protected by the First Amendment, for Alito, was enough to deny the dignity of marital recognition to same-sex couples.

Seething, resentful anger can be traced to a finicky 2006 confirmation hearing, from which his wife fled in theatrical tears. He recorded himself during the first official state of the union speech by a black president, when Barack Obama comments on a campaign finance decision made Alito react visibly “not true.” When fellow female justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan read the opinions from the bench, Alito several times purse his lips, roll your eyes, and (again) the “no” mouth. Perhaps Alito is subjecting the white male antagonists to the same openly dismissive — and obviously unwise — displays of contempt. But there is no public record to suggest as much.

Instead, Alito’s anger consistently resonates in a register of cultural decline, lamenting the growing importance of women and minorities in American life. Write it majority opinion in hobby hall, which endorsed a company’s right to deny employees contraceptive coverage, Alito spoke lyrically about “men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.” . Women deprived of medical care that facilitates participation in the labor market, on the other hand, were not a problem. Reviewing a Washington state regulation on pharmacists, Alito was quick to detect “hostility” to conservative religious beliefs. And in a notice repudiating New Haven’s efforts to promote more black firefighters, Alito alone traveled through history of the case to complain about the role played by a black pastor who was an ally of the city’s mayor and had “threatened a race riot”. The involvement of blacks in municipal politics, for Alito, appears as a sinister threat to public order.

In contrast, when the accusation of discrimination is made on behalf of racial or religious minorities, Alito does not express such concern. He does not look for evidence of bias. Instead, he takes an incredibly narrow view of job discrimination that requires women to instinctively know that they are paid less than their male counterparts. Despite his claim to a “just the facts ma’am” approach, Alito has a markedly restricted view of what the “facts” are. To read her opinions is to inhabit a world in which it is white Christian men who are the main targets of heinous discrimination, and where a traditional way of life marked by firm and clear gender rules is under attack.

When it comes to the criminal justice system, Alito is a reliable vote for the most punitive version of the state. In 2016, when the Supreme Court struck down Florida’s death penalty regime on Sixth Amendment grounds, only Alito dissented. When the court a year earlier found a federal sentencing rule for armed offenders unconstitutionally vague, only Alito voted for the accusation. It’s hard to think of instances where Alito voted for a criminal defendant, or any other litigant who elicits liberal sympathies.

Looking forward in anger, Alito’s voice anticipates and resonates with a growing Republican Party constituency. political scientists such as Ashley Jardina call it “white identity politics.” At the center of this worldview is a (false) conviction that white people are increasingly discriminated against. It is also important to believe that speaking English, being a Christian and being born in the United States are predicates for being American. Paradoxically, then, even as he wraps himself in the cloak of the law, Alito may well be the most democratic of judges: one who has power because his accent rings with increasing political force in electoral politics.

Where could this anger lead? In November 2020, Alito gave a Scheduled speech to the conservative legal organization the Federalist Society. A lot criticized at the time for his partisan tone “befitting a Trump rally”, in the words of one critic, these remarks are helpful because they foreshadow where a court on which Alito is a dominant voice might go.

In that speech, Alito criticized pandemic restrictions by lamenting the rise of “scientific” policy-making. He complained of the “protracted campaign” and “economic boycotts” of Catholic groups and others with “unpopular religious beliefs” (self-identified Christians are a part 63% of the American population). And he (falsely) warned against “morning after pills that destroy an embryo after fertilization”. If this discourse is any guide – and there’s no reason to think it won’t – the future of the Supreme Court will increasingly be one of religious censorship: keeping women in their lanes, stand up for Christian rights and make sure the arrogant “scientists” in the federal government don’t get what they want.

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