Justice Alito’s Crusade Against a Secular America Isn’t Over
By Margaret Talbot
The New Yorker
August 28, 2022
Illustration by Gérard DuBois
He’s had win after win—including overturning Roe v. Wade—yet seems more and more aggrieved. What drives his anger?
Some baby boomers were permanently shaped by their participation in the countercultural protests and the antiwar activism of the nineteen-sixties and seventies. Others were shaped by their aversion to those movements. Justice Samuel Alito belongs to the latter category. For many years, he lacked the power to do much about that profound distaste, and in any case he had a reputation for keeping his head down. When President George W. Bush nominated Alito to the Supreme Court, in 2005, many journalists portrayed him as a conservative but not an ideologue. The Times noted that legal scholars characterized his jurisprudence as “cautious” and “respectful of precedent.” Self-described liberals who’d known him—as an undergraduate at Princeton, as a law student at Yale, or in some later professional capacity—sketched portraits of a quiet, methodical, reasonable man.
On the Court, even as Alito’s opinions aligned consistently with the goals of the Republican Party—in particular, of social conservatives—admirers praised him as pragmatic and Burkean. According to a 2018 C-span/P.S.B. poll, he was the conservative Justice the fewest Americans could name, and for years he was overshadowed by his more flamboyant late colleague, Antonin Scalia; by Clarence Thomas, whose notorious confirmation hearings were followed by a rivetingly long silence on the bench; even by Neil Gorsuch, with his cussed libertarian streak. Richard Lazarus, a professor at Harvard Law School who has studied the Court, told me that in Alito’s first years as a Justice he was known primarily as Chief Justice John Roberts’s right-hand man—“someone the Chief could assign to write an opinion” that would not be too flashy or provocative, and that “would keep five votes together when he couldn’t trust Scalia to do it, because Scalia would swing for the fences and risk losing votes.”
Now, though, Alito is the embodiment of a conservative majority that is ambitious and extreme. (He declined to be interviewed for this article.) With the recent additions of Brett Kavanaugh and Amy Coney Barrett to the Court, the conservative bloc no longer needs Roberts to get results. And Alito has taken a zealous lead in reversing the progressive gains of the sixties and early seventies—from overturning Roe v. Wade to stripping away voting rights. At a Yale Law School forum in 2014, he was asked to name a personality trait that had impeded his career. Alito responded that he’d held his tongue too often—that it “probably would have been better if I said a bit more, at various times.” He’s holding his tongue no longer. Indeed, 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 term, Alito landed the reputation-defining assignment of writing the majority opinion in Dobbs v. Jackson Women’s Health Organization, which eliminated the constitutional right to abortion enshrined by Roe nearly fifty years ago. In May, a draft of his opinion was leaked, and from start to finish it sounded cantankerous and dismissive. “Roe was egregiously wrong from the start,” Alito declared. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.” He likened Roe to Plessy v. Ferguson, the notorious decision upholding segregation; approvingly cited centuries-old common law categorizing a woman who received an abortion after “quickening” as a “murderess”; and used the inflammatory word “personhood” when describing “fetal life.”
It was hardly inevitable that Alito would be assigned the Dobbs opinion. Joan Biskupic, a CNN analyst and the author of a biography of Chief Justice Roberts, has reported that Roberts “privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end.” Roberts wanted to validate the particular restriction at issue in Dobbs—a Mississippi ban on virtually all abortions after fifteen weeks—but he opposed a wholesale rejection of Roe, which, among other things, had strengthened the notion that a right to privacy was implicit in the Constitution. If Roberts had successfully enlisted, say, the occasionally more moderate Kavanaugh, he would have had the authority to assign the opinion—as the Chief Justice typically does when he is in the majority. Indeed, Roberts might well have written the opinion himself, producing a text that felt more conciliatory than Alito’s—something less openly contemptuous of the Justices who had crafted Roe and its sequel, Planned Parenthood v. Casey, and more mindful of the fact that a majority of Americans support abortion rights. But, Lazarus told me, “it was quite clear coming into conference after the oral argument that Roberts’s rationale was going to be much narrower than what the other five conservative Justices wanted to say.” Given this gulf, Roberts couldn’t insist on writing the main opinion himself. Traditionally, when the Chief Justice isn’t in the majority—or is nominally voting with it but making a substantially different argument—the most senior Justice in the winning bloc assigns the opinion. In this case, that was Thomas, and he chose Alito.
After the draft leaked, many Court observers predicted that, though the opinion’s substance wasn’t likely to change, its tone surely would. It might at least lose a chilling reference to an insufficient “domestic supply” of adoptable infants—a problem that would be fixed, presumably, by forcing more Americans to carry pregnancies to term. But the final version was virtually unchanged, save for the addition of a sharp rebuke to the dissent. (An investigation into the leak is supposedly ongoing; according to Biskupic, clerks were asked to sign affidavits and provide cell-phone records.)
“We saw an emboldened Alito this term,” Lazarus said. “Unlike when he first joined the Court, he no longer needs to curry favor from the Chief.” Roberts’s view of Dobbs was characteristic: he has long favored narrowly tailored opinions that foster consensus among the Justices and, perhaps, avert political chaos. He once observed, “If it’s not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.” Thomas and Alito have adopted a more combative approach—one that finds no great value in privileging precedent, especially if the precedent emanates from the sixties, when Chief Justice Earl Warren was pushing the Court leftward.
Some Justices, attentive to the immediate human risks of revoking the right to abortion, might have at least put on a show of sober humility. No matter how convinced they were that they were correct—and no matter how cognizant they were of having had the last word—they might, in public appearances, have tried not to antagonize the many Americans who think differently. At a minimum, they might have resisted making a gloating joke.
In July, Alito, who is seventy-two, delivered a speech at the Palazzo Colonna, in Rome, for a gathering hosted by the University of Notre Dame Law School’s Religious Liberty Initiative—a conservative group that has filed amicus briefs before the Court. (Faculty affiliated with the group also filed briefs in Dobbs. Legal analysts at Slate noted that the spectacle of a Justice “chumming it up with the same conservative lawyers who are involved in cases before the court creates the unseemly impression of judicial indifference toward basic judicial ethics rules.”) Alito had donned stylish horn-rimmed glasses that he doesn’t usually wear in public, and he had a new, graying beard. Though the speech focussed on one of his favorite topics—the supposed vulnerability of religious freedom in increasingly secular societies—he couldn’t resist crowing about Dobbs. “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. “One of these was former Prime Minister Boris Johnson—but he paid the price.” (Johnson resigned earlier this summer.)
The audience laughed heartily. “But others are still in office,” Alito continued, suppressing a smile. “President Macron and Prime Minister Trudeau, I believe, are two.” The laughter grew fainter, but Alito was on a roll. It was time for a dad joke about Voldemort: “What really wounded me was when 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 Ukraine.” (The Duke of Sussex, more commonly known as Prince Harry, had said, “This has been a painful year in a painful decade,” citing the pandemic, climate change, the war in Ukraine, the spread of disinformation, and the “rolling back of constitutional rights here in the United States.”)
Alito’s smile reappeared. On the bench, he is often serious, even scowling, especially when his liberal colleagues are speaking. But in Rome, taking shots at his critics for the amusement of a like-minded audience, he was living his best life.
Alito’s childhood and adolescence coincided with a social transformation for which the Warren Court provided the legal underpinnings. Warren, a Republican and an Eisenhower nominee who turned out to be far more liberal than those affiliations implied, presided over the Court from 1953 to 1969. Alito was born in 1950, in Trenton, New Jersey, in a mostly Italian American enclave. His family later moved to Hamilton Township, a nearby suburb. The Alitos were Catholic and belonged to the Our Lady of Sorrows Parish. By the time Alito entered high school, he had developed a keen interest in the law, and was taking note of the Warren Court’s reshaping of American life, which included landmark rulings desegregating schools and other public facilities; recognizing a right to contraception for married couples and to interracial marriage; barring state-sanctioned school prayer; and guaranteeing access to public defenders for indigent criminal defendants. As Alito later recalled, he joined the debate team, where he grappled with such Court opinions as Mapp v. Ohio (1961), which established that the “exclusionary rule”—prohibiting prosecutors from using evidence in court that has been obtained in violation of a defendant’s constitutional rights—applied not just to the federal government but also to the states. In a 2015 interview, Alito told the conservative commentator Bill Kristol that the experience made him “start to think about the Constitution and what it meant,” adding, “There’s nothing in the Constitution about the exclusionary rule. The Fourth Amendment says no unreasonable searches or seizures. But that’s it. So where did this come from? . . . What legitimizes something that is not in the Constitution?”
In Reynolds v. Sims (1964), the Court affirmed the so-called one-person-one-vote rule, an attempt to remedy the overrepresentation of rural voters. It required the states to form legislative districts of roughly equal population—or, as Warren wrote in the opinion, to at least make a “good faith effort.” Alito has written that such opinions helped make him an ardent conservative. In a successful 1985 job application for the Reagan Administration’s Office of Legal Counsel, he declared that he “first became interested in government and politics during the 1960s,” and that “the greatest influences on my views were the writings of William F. Buckley, Jr., the National Review, and Barry Goldwater’s 1964 campaign.” He added that he had particularly opposed the Warren Court’s decisions “in the areas of criminal procedure, the Establishment Clause, and reapportionment.”
Alito had an unusually close vantage point on the one-person-one-vote rule. In New Jersey, the Reynolds decision helped briefly turn the state legislature Democratic. His father, Samuel Alito, Sr., was a former high-school teacher who had become the director of New Jersey’s Office of Legislative Services, a nonpartisan position in which he researched and drafted laws. The elder Alito had a reputation for being scrupulously neutral, and it fell to him to draw up the state’s new legislative maps—an onerous job before computers. In the 2015 interview with Kristol, Alito recalled his father working downstairs, deep into the night, “drawing maps to try to produce districts for the Senate and the Assembly.” Alito, meanwhile, was “lying in bed listening to this clanking of a mechanical adding machine.” He has told this anecdote multiple times. It doesn’t seem to have been a very fond memory.
The sole dissent in the one-person-one-vote ruling came from Justice John Marshall Harlan II, who warned that the Court should not “be thought of as a general haven of reform movements.” Alito admired Harlan. On a 1971 trip to Washington, D.C., Alito and fellow-members of Princeton’s Whig-Cliosophic Society met with Harlan. “Almost alone among the Princetonians that day, Alito was familiar with Harlan’s rulings,” the Princeton Alumni Weekly noted in a later article about Alito’s college years.
If Alito is still fighting against the Warren Court of the sixties, he is now in an incomparably more powerful position. Richard L. Hasen, a law professor at U.C.L.A. who studies elections, told me that Alito “has indicated he remains skeptical of the one-person-one-vote rule.” Last term, in Vega v. Tekoh, the Court decided that police officers couldn’t be sued in federal court for failing to read suspects their rights; Alito, who wrote the 6–3 majority opinion, wondered whether the Court “has the authority to create constitutionally based prophylactic rules”—like the requirement, first established in Miranda v. Arizona (1966), that arrested suspects be verbally informed of their rights. Lenese Herbert, a law professor at Howard University, wrote on scotusblog that the Miranda decision—“one of the increasingly few cultural and court canons that binds us”—had been “injured, perhaps fatally.”
Alito matriculated at Princeton in 1968. The school didn’t have a particularly rebellious student body: during the 1969 Moratorium to End the War in Vietnam, the school’s Students for a Democratic Society contingent carried signs that said “even princeton.” Nevertheless, the university saw its share of sit-ins and marches during Alito’s years there, and his already deeply held political allegiances put him at odds with the left-wing youth culture surrounding him. His cultural tastes made him an outlier, too. Alito once recalled spending New Year’s Eve, 1967, in front of the TV at home, watching a band that his parents liked: Guy Lombardo and His Royal Canadians.
One of Alito’s college roommates, David Grais, told me, “Sam was offended by the more extreme instances of antiwar protest.” (Alito has said that he “could understand” opposition to the war but felt it was “very wrong” to allow discontent with government leaders to be expressed as “antipathy to the United States.”) In Alito’s sophomore year, students staged an antiwar strike after President Richard Nixon ordered the invasion of Cambodia. Eighty per cent of the student body took part. The administration announced that students could waive their exams. By several accounts, Alito was frustrated that the strikes might disrupt his education. He wasn’t alone. His classmate George Carpinello was liberal and opposed the war, but, like Alito, he came from a more humble background than many Princetonians. Carpinello, who is now a litigator in Albany, said, “We felt so lucky to be there, and the strike seemed, to us, to attack what was, in our mind, such a great institution. I suspect Sam is still carrying some of that.”
As conservative as Alito was, he was not a campus firebrand. A Princeton classmate who has kept in touch with him told me, “ ‘Firebrand’ would be the last way you would have described Sam. More like ‘quiet’ and ‘you barely knew he was there.’ ” Alito joined the Princeton debate team, however, as did Grais. They drove the team’s old Chevrolet to various tournaments, sometimes stopping to visit Alito’s sister, Rosemary, at Smith College, or to have dinner in Hamilton Township with Alito’s parents. Alito and Grais enjoyed themselves, but not exactly in the countercultural spirit of the era: after a debate in Ontario, a Canadian customs agent reportedly stopped the team and found bottles of port in the trunk.
Princeton went coed in Alito’s sophomore year. Alice Kelikian, who became a friend of his, remembered hanging out with him around a microwave oven that had just been installed on campus, warming up chocolate-chip cookies while talking about Italy and the philosopher John Rawls. Kelikian, who dated one of Alito’s friends, noted that Alito was always “very respectful of me,” adding, “A lot of male classmates were not.” Still, feminism was in the air: young women were talking about new possibilities for living independent and fulfilling lives; about ways they might explore sexuality without committing to marriage and family right off; about their determination to create a less misogynistic society. In 1973, the year after Alito graduated, the Supreme Court issued its Roe decision.
Kelikian, now a history professor at Brandeis University, told me, “Sam was Trenton Italian and I was Chicago Armenian.” That felt to her like some sort of commonality, but they had different attitudes toward the tight-knit, convention-bound immigrant communities from which they’d emerged. She felt that she was breaking away from hers; he remained tethered to his. Alito later told an interviewer for the National Italian American Foundation that he couldn’t relate to his peers’ view that their elders had “become affluent by taking advantage of other people—they had bad values, they were very materialistic.” Alito went on, “I thought that whole view of my parents—of the generation to which my parents belonged—was false. Perhaps it was true of some people in that generation, but certainly it wasn’t true of the people that I knew.” At his Supreme Court confirmation hearings, he described his New Jersey suburb as a stronghold of traditional values that felt safe. At Princeton, he said, he saw some “very privileged people behaving irresponsibly, and I couldn’t help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of some of the people back in my own community.”
Alito’s grandfather came to America from Italy in 1913. An unskilled laborer for the Pennsylvania Railroad, he was employed irregularly during the Depression. His wife and infant son, Samuel, soon joined him in Trenton. Alito’s father grew up poor, but he excelled in school and became a teacher who set exacting academic standards for his own two children. At night, Alito told the interviewer for the National Italian American Foundation, his father sat with him and his sister, Rosemary, at the kitchen table, going over “every single word” of their school papers. Alito went on, “To start out, it was very painful, but I think that’s how you have to learn writing.” (Rosemary now practices employment law in New Jersey.) Their mother, Rose Fradusco Alito, whom Alito has called “a very intelligent, very determined, very strong-willed person,” was an elementary-school teacher and a principal. In 2006, she told the Washington Post that, “when the first baby came, I said, ‘Sam, our children are going to be the smartest children in Hamilton Township.’ ”
Alito had big plans for himself, too. His senior-year yearbook entry at Princeton shows a young man with neatly trimmed hair and a serious gaze behind bulky eyeglasses. The entry reads, “Sam intends to go to law school and eventually to warm a seat on the Supreme Court.” Years later, when he sat on the Court, he described the line as a joke. If it was, it was a subtle one.
While at Princeton, Alito was enrolled in R.O.T.C., and he was upset when the Board of Trustees voted, in 1970, to terminate the program over the course of the next two years. At his Court confirmation hearings, he said the prevailing attitude on campus had been that “Princeton would somehow be sullied if people in uniform were walking around.” The program was reinstated, as an extracurricular activity, in 1972, but the situation continued to irk Alito. During his confirmation hearings, Democratic senators—Joe Biden among them—pressed him to answer why, on his 1985 application for the Office of Legal Counsel job, he had listed membership in an organization called the Concerned Alumni of Princeton (cap). The group was made up of disgruntled former Princetonians who criticized various changes on campus, including coeducation and the university’s efforts to recruit minorities and public-school graduates. (Princeton, the group’s founder declared, should consist of “a body of men, relatively homogenous in interests and backgrounds.”) Senator Patrick Leahy told Alito he was puzzled that someone with his background would want to join such an ultra-Wasp club. Alito said that he didn’t recall joining the group, but had likely been prompted by his objection to the downgrading of the R.O.T.C. program, which cap also cared about (though not as much as it cared about preserving Princeton for élite white males).
Another classmate of Alito’s, the future Fox News analyst Andrew Napolitano, later offered the Princeton Alumni Weekly what might have been a more persuasive explanation: “There were two types of conservatives at Princeton—those who were conservatives before Ronald Reagan and those who were conservatives after. If you told Ed Meese”—Reagan’s hard-line Attorney General—“you were a member of cap, that told him you weren’t a new arrival. It was a way of saying, ‘I’m the real thing.’ ”
For Alito, Yale Law School, too, was mined with countercultural bombs. In 2005, a member of Alito’s class, Diane Kaplan, told the Yale Daily News that “a lot of us were hippies, love children, political dissenters, draft dodgers.” She noted that Alito and his Princeton friends “came to class with buttoned-down collars and looking very serious.” Alito has described his classmates as “overwhelmingly liberal,” but noted that there “were a few of us conservatives kind of hiding,” among them Clarence Thomas and John Bolton, who served briefly as President Donald Trump’s national-security adviser.
Alito had come to Yale eager to study with one of his intellectual heroes, Alexander Bickel, a charismatic and prolific scholar who believed that the Warren Court had indulged in egregious activism. But Alito wasn’t placed in Bickel’s constitutional-law class. Alito’s friend Mark Dwyer, meanwhile, was assigned to the staunchly conservative scholar Robert Bork’s course, and he later told the Times that Alito had seemed jealous. In one of the worst pairings of student and professor in course-scheduling history, Alito ended up with Charles Reich, the eccentric counterculture guru who had written the best-selling manifesto “The Greening of America.” (An excerpt appeared in this magazine.) Alito, having read the book, formally requested to switch out of the class, but he was told no.
Reich loved flower-child sensibilities as much as Alito hated them—he saw even bell-bottoms as a form of rebellion worth validating. Before joining the Yale faculty, he had been a clerk for Justice Hugo Black and a lawyer at élite firms, but by the time Alito arrived in his class Reich had embarked on a long, strange trip as a public intellectual and a freewheeling seeker. Reich interviewed Jerry Garcia for Rolling Stone and, in a law-review article, criticized police harassment of citizens, folding in his own unpleasant encounters with cops. Many students were charmed and inspired by Reich: Bill and Hillary Clinton both studied with him. (When Bill Clinton became President, one of his environmental initiatives was called the Greening of the White House.) Alito was not one of those students. In appearances and interviews, he has spoken disparagingly of Reich’s “most bizarre course.” Reich, Alito said, told his students that he “had a ticket to San Francisco in his desk and at some point during the term it was possible that there would be a note on the bulletin board that he had gone to San Francisco, and the course would then be over.” Alito recalled that, sure enough, he returned from Thanksgiving break to find just such a note. He joked to Kristol that he was “self-taught” in constitutional law.
At Yale, Alito’s occasional high jinks seem to have been as old-school as they were at Princeton. Grais told me that Mark Dwyer “used to smoke a pipe, and Sam took a rubber band and cut it up in little pieces and mixed it in with his tobacco.” Alito sometimes had a glass of Scotch, Grais recalled, and Dwyer once put “salt in Sam’s ice cubes.”
In December, 2008, when Alito had been on the Court for nearly three years, he spoke at a fund-raising gala in Washington for the right-wing magazine The American Spectator. Now that his position was secure for life, he could afford to be a little caustic about that whole sixties thing. He poked fun at the left’s idealism by drawing a parallel between Barack Obama and Eugene McCarthy—the liberal icon who unsuccessfully ran for the Presidency in 1968 while, in Alito’s words, “promising to restore hope and bring about change.” No doubt to the bafflement of many younger people in the audience, he mocked the psychedelic band Country Joe and the Fish as well as its Vietnam War protest song “I-Feel-Like-I’m-Fixin’-to-Die Rag.” Alito complained that “for the past forty years there have been places in this country, sort of like the island in ‘Jurassic Park,’ where it’s always been 1967.” But if sixties-inflected views still reigned in outposts like academia, there was cause for conservative triumphalism. During the Warren Court era, Alito said, “the legal vanguard” had imagined that “the law would move dramatically” leftward—“but they turned out to be wrong.” To laughter, he added, “To coin another phrase, ‘Sweet dreams and flying machines in pieces on the ground.’ ” Alito was quoting the James Taylor song “Fire and Rain.” Those lyrics, of course, aren’t about the crushing of progressive dreams—they’re about Taylor’s addiction struggles and a friend’s suicide. But you wouldn’t expect a Guy Lombardo fan to know that.
No matter how much individual states, cities, clinics, and activists push back against Dobbs, it will impose a fundamental—and, for a majority of Americans, undesired—reordering of women’s reproductive lives and expectations of equality. In 1992, when the Court upheld Roe, in the Casey opinion, it acknowledged what is known as a “reliance interest.” Two decades had passed since the Court had first recognized a constitutional right to abortion, and since then, as the opinion put it, “people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” Moreover, “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Alito’s Dobbs opinion dismissed this appraisal as an “intangible form of reliance” based on “an empirical question that is hard for anyone—and in particular, for a court—to assess.” Yet millions of Americans have constructed their lives with the expectation that abortion (and birth control) would be available. And surely part of the Court’s job is to ponder the likely consequences of upending such an expectation. Rachel Rebouché, a law professor at Temple University who specializes in health and family law, told me that “courts decide all the time whether or not there are consequences to laws.” Alito seemed willing to accept the notion of reliance in only one realm: property and contracts. “That’s a really formalistic way to think about reliance—a really crabbed notion of what we can know about a law’s effects,” Rebouché said.
As the liberal Justices pointed out in their dissent, the Dobbs decision endangers other Supreme Court precedents. In particular, it leaves vulnerable the cases that established “unenumerated rights” to privacy, intimacy, and bodily autonomy—rights that the Constitution did not explicitly name but that previous Court majorities had seen as reasonable extensions of the liberties protected by the Fourteenth Amendment. Many Americans have also built their lives on precedents such as Griswold v. Connecticut, the 1965 case confirming the constitutional right of married couples to buy and use contraception; Loving v. Virginia, the 1967 case declaring bans on interracial marriage unconstitutional; Lawrence v. Texas, the 2003 case recognizing a right to same-sex intimacy; and Obergefell v. Hodges, the 2015 case recognizing a right to same-sex marriage. Would Alito grant that these decisions have created reliance interests?
In Dobbs, Alito promised that those other precedents are safe, and that abortion is different from other personal decisions because it “destroys” what the Mississippi law “describes as an ‘unborn human being.’ ” He insisted, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But Alito’s assertion about the singular preciousness of a fetus does not alone create a legal standard. Neil Siegel, a Duke University law professor, told me, “ ‘Because I said so’ is not a reason—not in parenting and not in law.” The anchoring logic of Alito’s opinion is that rights not stipulated in the Constitution pass muster only if they have long been part of the nation’s traditions. By this standard, what is to preclude the undoing of the right to same-sex marriage guaranteed by Obergefell? Tellingly, Alito furiously dissented in that case, saying that a right to same-sex marriage was “contrary to long-established tradition.” Indeed, Clarence Thomas, in his Dobbs concurrence, argued that the particular cases protecting same-sex marriage and intimacy, along with contraception, were very much up for reconsideration. (Thomas left out Loving, the interracial-marriage case.)
The Dobbs dissent, issued by Stephen Breyer, Elena Kagan, and Sonia Sotomayor, sharply challenged Alito’s assurances. “Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further,” they wrote. “Scout’s honor. Still, the future significance of today’s opinion will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads.”
In overturning Roe, the Court bolstered not only the anti-abortion movement but also the conservative legal movement—an effort associated with the Federalist Society, which, since its founding, in 1982, has promoted an “originalist” jurisprudence based on narrow readings of the Constitution. Such readings often dovetail with many conservative policy goals, from the dismantling of the regulatory state to the defense of gun rights. If Roe had been upheld—even after Trump had loaded the Court with self-described originalists who, he promised, would overturn the decision—the movement might have reached its breaking point. Last winter, J. Joel Alicea, a former Alito clerk who now teaches law at the Catholic University of America, wrote in City Journal that there was growing tension in the movement between “those who saw originalism as a means to achieving some other substantive end and those for whom it was the only legitimate constitutional methodology.”
Some conservative skeptics of originalism were particularly frustrated with a 2020 majority opinion by Justice Gorsuch concluding—ostensibly through originalist logic—that Title VII prohibitions on employment discrimination applied to gay and transgender people. (Alito dissented, declaring that the inclusion of L.G.B.T.Q. people in Title VII protections “will threaten freedom of religion, freedom of speech, and personal privacy and safety.”)
If the Court’s originalists couldn’t even successfully deploy their approach to overturn Roe, then what good was it? Alicea wrote that, for the conservative legal movement, the stakes in Dobbs could not be higher: it was either “complete victory or crisis-inducing defeat.” Alito’s opinion was a complete victory. An analysis in National Review hailed the decision as the movement’s “crowning achievement.”
For Alito, Dobbs was also the culmination of a sixteen-year effort to make his mark on the Court. When he first became a Justice, he was often portrayed as a Mini-Me of another Italian American Catholic from Trenton: Antonin Scalia. Some commentators even referred to him as Scalito. But, although the two Justices frequently voted together, they were different in ways both temperamental and jurisprudential. Alito could be as acerbic in his writing as the irrepressible Scalia, but he rarely seemed to be having as good a time. Scalia’s bold commitment to originalist readings of the Constitution sometimes led him to outcomes that he, as a law-and-order type, didn’t much like, such as supporting the First Amendment claims of a flag-burning protester or upholding the Fourth Amendment rights of criminal defendants. Alito adopted a more elastic form of originalism which has allowed him, with plodding consistency, to arrive at results that a loyal Republican would prefer.
Whereas Scalia’s admirers praised his intellectual commitment to originalism, Alito’s admirers in the conservative legal movement often highlight his practical approach. At a recent American Enterprise Institute conference honoring the Justice’s jurisprudence, Keith Whittington, a professor of politics at Princeton, said that Alito’s opinions “can be a little frustrating if what you’re looking for and thinking about is how to draw much broader themes out of his work, as far as theoretical approaches . . . that might apply to a wide array of cases.” But it was “refreshing,” Whittington said, to see a Justice “really try to tie the arguments and the logic and the application to the details of the facts of the situation.”
From 2006 to 2020, four liberal Justices sat on the Court. According to Adam Feldman, of the blog Empirical scotus, Alito is the conservative Justice who has joined with the liberals on the Court the least often. He never once provided them with the swing vote in a 5–4 decision. Since the 2010 term, he has joined with three liberal Justices (and Roberts) only once—in an uncontroversial case that defined the phrase “tangible object” in a criminal statute.
This past term, Alito got the most attention for Dobbs, but he also signed on to several other 6–3 decisions that achieved right-wing goals. He joined a far-reaching decision curtailing the Environmental Protection Agency’s ability to limit carbon emissions without congressional authorization. He also joined an opinion compelling Maine to subsidize the tuition of students attending religious schools, and a decision that expanded the right to carry firearms in public.
The reversal of Warren Court norms may be accelerating under today’s lopsided majority, but Alito has been pushing the Court rightward since his arrival. Richard L. Hasen, the election-law expert, told me that Alito is “uniformly hostile to voting rights,” and has been a “major force” in the Court’s support for corporate spending in campaigns. Alito encouraged the filing of suits that have allowed the Court to curb the power of public-sector unions. He authored the 5–4 opinion in Burwell v. Hobby Lobby Stores (2014), which exempted some companies from providing contraception coverage to their employees, and he has helped advance a new regime of jurisprudence strengthening the rights of religious people—especially conservative Christians, and especially when their beliefs conflict with anti-discrimination law. In environmental cases, according to a forthcoming law-review article by Lazarus, the Harvard Law professor, Alito has joined with “the side supported by environmentalists” only four out of thirty-eight times, making him the Justice least likely to do so. (And those votes came only in cases decided unanimously.)
Nevertheless, Alito’s biting tone in Dobbs represented a significant change. Stephen Vladeck, a constitutional-law professor at the University of Texas, told me, “This was not a decision that is intended to convince anybody other than the folks who support its result. And I don’t mean convince them that Alito and the other conservative Justices are right—I mean convince them that they’re principled.” Dobbs revealed “a bloc of Justices who are increasingly untroubled by the declining public perception of the Court, because they think it’s just pissed-off progressives.” It’s not just pissed-off progressives. Since 2000, as a recent study in the Proceedings of the National Academy of Sciences found, the Court is estimated to have moved “to the ideological right of roughly three-quarters of all Americans.”
In 2005, not long after Justice Sandra Day O’Connor decided to retire, President George W. Bush nominated Harriet Miers, the White House counsel and his longtime friend, to fill the vacancy. Congressional Republicans and Christian conservatives quickly turned against Miers, igniting what Bush describes, in his memoir, as “a firestorm.” Miers was insufficiently “fancy,” as Bush puts it; she lacked an Ivy League degree, and she hadn’t been an appellate judge or a legal academic. Although she was an evangelical Christian, Miers was further damaged by fears that she was not anti-choice enough. (She had once argued that “self-determination” mattered when it came to abortion.) Bush’s nomination of his confidante also smacked of cronyism. But, according to Ann Southworth, a law professor at U.C. Irvine who has studied the Federalist Society, a major part of “what tanked her is that she was not seen as having come up through the conservative legal movement.” Robert Bork told NPR that Miers’s selection was “a blow” to a “movement that’s been building up for twenty years and now has a great many people who are qualified for the Court but all of whom have been passed over.” Bush soon withdrew Miers’s nomination.
Bush turned next to Alito, partly because Miers had recommended him. Still, when the men met at the White House, Bush found him “as reserved as they come” and “ill at ease.” For the previous fifteen years, Alito had been a federal Court of Appeals judge, on the Third Circuit. As he later recollected in an onstage interview at Duke, his professional life in that role had been almost monastic: “My days consisted of driving to the office, walking up to my chambers, reading and writing, talking to no human beings except my assistants and my law clerks, getting back in my car, driving home, and doing the same thing the next day. Every once in a while, there’d be an oral argument, maybe once every six and a half weeks.” Bush finally broke the ice with Alito by discussing baseball. Alito was such a Philadelphia Phillies fan that he had once spent a week at the team’s Phantasy Camp—a Christmas gift from his wife, Martha-Ann Alito, a former law librarian. (They have two children, Philip, a lawyer, and Laura, a marketing executive.)
Unlike Miers, Alito had an extensive judicial record that included abortion cases: as an appellate-court judge, he was the sole dissenter in a 1991 case that struck down a portion of a Pennsylvania law requiring women, with few exceptions, to notify their husbands before obtaining an abortion. (A year later, when that case made it to the Supreme Court, as Casey, the Justices decided that the spousal-notification rule posed an “undue burden.”) Equally reassuring to conservatives was Alito’s service in the Reagan Administration’s Justice Department. Under Edwin Meese, it had attracted young lawyers itching to roll back abortion rights, certain protections for criminal defendants, and affirmative action (which the Administration portrayed as reverse discrimination against whites).
Alito had joined the Justice Department in 1981, working in the office of the Solicitor General. Many of his colleagues were civil servants who didn’t share his political views. Alito has said that he was initially a “secret conservative.” In 1985, he began slipping out of the office to attend monthly lunch meetings hosted by the Federalist Society, at a Chinese restaurant called the Empress. At one such gathering, he ran into Charles Fried, then the acting Solicitor General. “Oh, what a surprise to see you here,” Fried said. “This is like meeting a friend at a bordello.”
Fried, now a law professor at Harvard, told me that Alito had been a “pleasant” and “cultivated” colleague, and a fine writer who helped him craft arguments for government cases before the Supreme Court. At the time, the Reagan Administration was pushing the idea that affirmative-action policies should have “victim specificity,” benefitting only individuals directly subjected to discrimination. Alito, Fried recalled, came up with some choice lines, such as “Henry Aaron would not be regarded as the all-time home run king, and he would not be a model for youth, if the fences had been moved in whenever he came to the plate.” Their effort failed. In 1986, the Court repudiated victim specificity, declaring, “The purpose of affirmative action is not to make identified victims whole but rather to dismantle prior patterns of employment discrimination and to prevent discrimination in the future.”
While at the Solicitor General’s office, Alito wrote a memo defending police officers’ right to shoot fleeing suspects regardless of the threat they posed. The case involved a fifteen-year-old Black boy, Edward Garner, who, according to Alito’s memo, was killed by a Memphis police officer who “could see that his target” did “not appear to be armed.” (Garner was carrying a purse containing ten dollars.) An appellate court had upheld a civil-rights case brought by Garner’s father against the Memphis Police Department and city officials; the State of Tennessee was now appealing to the Supreme Court. Alito wrote:
Any rule permitting the use of deadly force to stop a fleeing suspect must rest on the general principle that the state is justified in using whatever force is necessary to enforce its laws. Assuming that a fleeing felony suspect is entirely rational . . . what he is saying in effect is: “Kill me or allow me to escape, at least for now.” If every suspect could evade arrest by putting the state to this choice, societal order would quickly break down.
The Supreme Court sided with Garner’s father. Writing for the majority, Justice Byron White declared, “It is not better that all felony suspects die than that they escape.”
At the Justice Department, Alito also became friendly with Charles Cooper, a hard-line conservative deputy in the Civil Rights Division. (In 2013, with Alito on the Supreme Court, Cooper argued against same-sex marriage.) In 1985, Cooper was asked to lead the Justice Department’s Office of Legal Counsel, and he urged Alito to apply to become his deputy.
Alito pursued the position, candidly declaring in a memo, “I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this administration.” (He’d even tried to write commentary for right-wing magazines, though his submissions, to outlets such as National Review and The American Spectator, were rejected.) In the memo, Alito noted that he was “particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to abortion.”
Alito got the promotion. Among the Reagan Administration policies that he helped promulgate was one shielding employers who fired people with aids “because of fear of contagion, whether reasonable or not.” In 1986, Alito told the Washington Post, “We certainly did not want to encourage irrational discrimination, but we had to interpret the law as it stands,” and extant laws did “not regulate what a private employer can do if he has a fear of a contagious disease.”
A liberal former colleague of Alito’s from the Solicitor General’s office told me that in the eighties Alito had seemed like an establishment Republican—“someone who wouldn’t put ideology above the proper functioning of the system, which I thought stare decisis was a big piece of.” (Stare decisis—Latin for “let the decision stand”—is the doctrinal preference for upholding precedents.) The colleague observed, “The S.G.’s office maintained a kind of cult of smartness. You couldn’t be thinking too weirdly. There was this élite meritocracy that, we thought, dissolved hard ideological tensions.” These assumptions now struck the colleague as naïve. Alito “was always very tightly wrapped,” he recalled, adding, “I now wonder what he was thinking all those times he didn’t say anything.”
At Alito’s Supreme Court confirmation hearings, he performed with steely equanimity. Andrew Napolitano, his former college classmate, told the Princeton Alumni Weekly that he knew Alito would maintain his composure, joking, “He doesn’t have a temper to lose.” Alito said all the things about Roe and Casey that anti-abortion jurists must say to insure confirmation. He called stare decisis a “fundamental part of our legal system.” When Senator Arlen Specter, a Republican at the time, asked him if Casey qualified as a “super-precedent,” he responded with a wan witticism: “I personally would not get into classifying precedents as super-precedents or super-duper-precedents or any sort of categorization like that. It sort of reminds me of the size of laundry detergent in the supermarket. I agree with the underlying thought that, when a precedent is reaffirmed, that strengthens the precedent.” Alito said that his Reagan-era assertion that the Constitution didn’t guarantee a right to abortion was merely “what I thought in 1985, from my vantage point in 1985.” He told the Democratic senator Chuck Schumer that if the abortion issue came before him on the Court he would first apply stare decisis. If he got “beyond that,” he would “go through the whole judicial decision-making process before reaching a conclusion.” When Schumer asked if he still doubted that a right to abortion could be derived from the Constitution, Alito deflected by protesting, “You are asking me how I would decide an issue.”
Alito acknowledged that he held “traditional values,” but in the mildest terms. He said that he believed in defending “the ability to raise children the way you want” and in students’ right “to express their religious views at school.”
Some of Alito’s supporters from this period now wonder how much of the tepid persona he projected back then was genuine. In 2005, Lawrence S. Lustberg, a criminal-defense and civil-rights lawyer in New Jersey, told the Times that he had known Alito professionally for more than twenty years. Although he anticipated that Alito would “move the court to the right,” he also regarded him as “totally capable, brilliant and nice.” I contacted Lustberg to ask what he felt now. He responded that, in the course of his long career, his biggest regret was having expressed optimism about Alito, whose jurisprudence “has turned out to be angry, dark, retrogressive, and historically damaging.” Lustberg had argued before Alito when Alito served on the Third Circuit, and had found him fair. But on the Supreme Court, Lustberg told me, “it’s like he has gained a sense of freedom to change the world in the image he has for it.”
Charles Fried, Alito’s former boss in the Solicitor General’s office, told me that he’d expected Alito to play a Roberts-like role on the Court: cautious, respectful of stare decisis. Fried has since “watched, with some consternation, the fierce opinions Sam now writes.” At Alito’s confirmation hearings, Fried testified on his behalf, and Senator Dianne Feinstein asked him if he thought Alito would vote to overturn Roe. “I knew I couldn’t miss a beat,” Fried told me. “It would have been fatal. I said no. And I regret that now. I should have hesitated.”
The equable-nerd manner that colleagues once noted in Alito deserted him soon after Barack Obama became President. In January, 2010, during a State of the Union address, Obama criticized the Citizens United decision that Alito had recently signed on to, which declared that limiting campaign donations from individuals or corporations was a violation of free speech. “With all due deference to separation of powers,” Obama said, the Court had “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.” When Justices attend the State of the Union, they almost always remain impassive and inscrutable, like well-behaved jurors. But when Obama mentioned Citizens United, Alito could be seen shaking his head dismissively and mouthing, “Not true.” Alito later told The American Spectator he found it strange that Justices were supposed to sit there “like potted plants,” adding, “People thought I said something. I assume that they’re correct. I certainly thought it. The President said that Citizens United overruled a century of precedent, which just isn’t true.” (Obama may have erred by suggesting that the issue was settled law, but his main point, about the flood of money, was correct: in the 2020 elections, according to the watchdog OpenSecrets, special interests spent more than $2.6 billion.)“
As a Justice, Alito has become an incisive and aggressive questioner. At the American Enterprise Institute conference on his jurisprudence, Stephanos Bibas, a Trump-appointed appellate judge, said of him, “There are some Justices who hop in right away. . . . He sits back. He listens. He sees where his colleagues are going. . . . And he’s just very carefully prepared this one stinger or bazooka, and it just goes straight to the heart of the case and explodes it.” Alito is especially sharp with advocates representing the side with which he disagrees. During oral argument in a 2014 case involving fees collected by a public-sector union, Alito confronted a lawyer arguing in support of the union’s position with a scenario of corruption, noting that, after one governor won an election with the help of a “campaign contribution from the union,” he “signed an executive order that had the effect of putting, what was it, $3.6 million into the union coffers?” As the Supreme Court analyst Garrett Epps has noted, Alito portrayed public-sector unions as “nothing but a political boondoggle.”
According to Tonja Jacobi, an Emory University law professor who has studied oral arguments, Alito often bangs the table while talking, to “emphasize certain words.” He occasionally makes jokes but isn’t one of the funnier Justices. Jay Wexler, a law professor at Boston University who clerked for Ruth Bader Ginsburg, has, as a side project, kept tabs on which Justices get the most laughs, by counting the number of times Court transcripts note “laughter,” in brackets, after a comment. When I asked Wexler where Alito ranked, he responded, in an e-mail, “Hmm, Justice Alito from a humor point of view—that shouldn’t take long. He always looks like he’s just swallowed a bad clam.” Wexler then reported that during the last term Alito got two laughs, “both in February.” In a case involving whether a Native American tribe could operate certain types of bingo games, Alito informed a lawyer for the tribe that he couldn’t tell if particular machines were truly for playing bingo. He then dropped this zinger: “If they are not bingo, they’re something else—let’s say they’re dingo.”
When Alito’s colleagues speak, he sometimes tips his chair back and gazes at the ceiling, in an attitude suggestive of increasingly challenged sufferance. Mark Joseph Stern, of Slate, once described Alito as the “rudest, most impudent justice,” citing occasions when he “glowered and rolled his eyes” at Kagan and Ginsburg while they read opinions from the bench.
This irritation may explain why, in speeches for audiences who can be presumed to agree with him, Alito becomes partisan and sarcastic. Last fall, at Notre Dame, he batted away criticism of the Court’s overreliance on the “shadow docket”—unsigned orders that the Court issues without full briefing or argument—by belittling the term itself: “The catchy and sinister term ‘shadow docket’ has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods.”
In 2020, Alito gave an online speech for the Federalist Society that was unusual, and perhaps unprecedented, for a modern Justice. He bluntly aired his views on specific issues before the Court, including a Second Amendment case that he cited in an opinion this past term. He also expressed concern about the scope of public-health measures aimed at curbing the spread of covid-19, declaring, “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” Alito excoriated the governor of Nevada’s decision to cap church services at fifty people during the pandemic while allowing casinos, restaurants, and movie theatres to stay open at fifty-per-cent capacity. The message, he said, was “forget about worship and head for the slot machines, or maybe a Cirque du Soleil show.” (The Court, which then still had Ginsburg on it, had upheld the Nevada regulations.)
In certain moments, he sounded like a conservative talk-radio host deploying a set of tried-and-true culture-war tropes. Today, Alito lamented, “you can see shows on your TV screen in which the dialogue appears at times to consist almost entirely” of the seven words that the comedian George Carlin had, in 1972, listed as the ones you couldn’t say on TV. At the same time, there were “seventy times seven” things that you couldn’t say on college campuses or at many workplaces. “You can’t say that marriage is a union between one man and one woman,” Alito bemoaned. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”As Alito saw it, “In certain quarters, religious liberty is fast becoming a disfavored right,” while “the ultimate second-tier constitutional right, in the minds of some, is the Second Amendment right to keep and bear arms.”
Ira (Chip) Lupu, an emeritus professor at George Washington University Law School with an expertise in religion, believes that Alito has crudely applied “an entirely appropriate concern about persecution of vulnerable minorities, including religious minorities, around the world” to the way “conservative religious people, mainly Christians, are in conflict over matters like L.G.B.T.Q. rights and the status of women and reproductive freedom in this country.” Christian Americans, Lupu argued, “don’t get persecuted—they get disagreed with.” He continued, “Yes, sometimes they are under certain obligations as citizens. They might face non-discrimination laws. But nobody ever says, for example, that you have to give the sacrament of marriage to same-sex couples. Nobody says you lose your tax exemption if you don’t ordain openly gay priests or rabbis. That would be persecution.”
In Rome, Alito claimed that “you had better behave yourself like a good secular citizen” just to go into public nowadays. Lupu told me, “Nobody says you can’t wear religious garb or a T-shirt with New Testament quotations when you go to the mall. Some people like it and some people don’t, but nobody’s preventing you from doing it.”
Alito has warned that, as Americans become more secular, the U.S. may become less attuned to the constitutional rights of religious citizens. But when he makes this argument a curious elision sometimes occurs, and he seems to be saying that the growing percentage of secular people is in itself a form of religious persecution. In Rome, Alito said, “Think of the increasing number of young Americans whose response, when asked to name their religion, is to say ‘None.’ Think of those who proclaim that religion is bad. What can we say to such people to convince them that religious liberty is worth protecting?” Who is the “we” here? Supreme Court Justices? Conservative Christians? The devout?
In Rome, he told an anecdote about a little boy he’d once spotted at a museum in Berlin who, while gazing at a “rustic wooden cross,” turned to the woman he was with—“presumably, his mother”—and asked who the man on it was. Alito called this “a harbinger of what may lie ahead for our culture.” Even as an anecdote, this doesn’t do quite the work that Alito seems to think it does. Maybe the boy was Muslim or Jewish. Maybe his mother explained, then or later, who Jesus was. Lupu told me, “The other side of the story is, Here this kid is in a museum displaying crucifixes and probably other religious art. Maybe his mother answers respectfully—‘We’re not Christians, but this is what many people believe.’ That’s not a bad way for people to get educated about Christianity.”
When delivering speeches, Alito doesn’t raise his voice, and he sometimes adopts a singsong intonation, as if explaining, with weary patience, what ought to be an unassailable truth. But it’s hard not to see anger beneath it all. To Lustberg, it’s striking that at the very moment Alito is “winning” on the Court he seems deeply unsatisfied: “It’s like he wants to both set forth his position and have everybody embrace it.”
As Alito’s power has grown, and as case after case has gone his way, his public persona has become more aggrieved. George Carpinello, the former classmate of Alito’s, told me, “He has become very angry, starting with the talking back to the President at the State of the Union. That would have been something I never would have expected Sam Alito to do as a Justice.” The Princeton classmate who has kept in touch with him told me that Alito has remained understated and polite in private gatherings. The classmate has been surprised by the Justice’s manner in open hearings and in public appearances. “His opinions are so harsh at times,” the classmate said. “I’ve listened to many oral arguments, and I listen to his questions and I think, Who is this? With some of them, there is a lot of condescension and nastiness. And that is not the Sam Alito I know.”
Perhaps the most important alliance on the Court now—and quite likely for some time to come—is between Alito and Thomas. Thomas, as well as Justice Sotomayor, shared a stage with Alito at the Yale Law School forum in 2014, and the two men displayed a certain chemistry. Thomas laughed and laughed whenever Alito made little wisecracks. (Alito said that he loved the film “Being There” because “being in the right place at the right time—that’s the best.”) Alito and Thomas clearly share many political and cultural beliefs, though Thomas has protested that his personal views have no bearing on his jurisprudence. At an event last year at Notre Dame, he said, “The media makes it sound as though you are just always going right to your personal preference. So, if they think you’re anti-abortion or something personally, they think that that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician.” Such readings of the Justices, he asserted, jeopardized Americans’ “faith in the legal institutions.” (Thomas’s wife, Ginni Thomas, is a prominent right-wing activist who has worked to overturn the results of the 2020 Presidential election. He has not commented on whether those activities might jeopardize “faith in the legal institutions.”)
Aziz Huq, a law professor at the University of Chicago, told me, “One of the really important features of the conservative legal movement is the idea that its practitioners say they are just doing law—there’s no evaluation of consequences, no preferences or judgments in the moral sense of the word. They do law, and liberals do something else, but it’s not law.” Yet, as Huq noted, that claim rings hollow at a time when “the correlation between judicial outcomes and the changing composition of the Court is utterly apparent.”
Whether or not Thomas and Alito think it’s fair, various analysts have examined their Court opinions looking for evidence of political affinities. In a 2011 article in the Times Magazine, Emily Bazelon noted that Alito’s opinions occasionally display some empathy, but that it “rarely extends to people who are not like him.” This selective quality, she argued, offers an insight into “conservative instincts” about “who deserves our solicitude.”
In a 2009 case, Alito expressed kindly concern for a white firefighter, Frank Ricci, who had sued the city of New Haven for reverse discrimination. He made note of Ricci’s dyslexia and “personal sacrifices.” Alito wrote a concurring opinion in the 5–4 case, which rejected as unconstitutional an effort to favor Black firefighters in promotions. As Huq noted recently in Politico, Alito “trawled the history of the case to complain about the role played by a Black pastor who was an ally of the city’s mayor”—and who, Alito noted, had reportedly once “threatened a race riot.” Huq concluded, “Black involvement in municipal politics, for Alito, appears as a sinister threat to public order.”
It’s revealing to contrast that decision with one Alito issued in a 2007 case that threw out a discrimination claim by Lilly Ledbetter, a supervisor at a Goodyear factory who had been paid less than her male counterparts for nearly twenty years. Alito, writing the majority opinion, rejected her claim on the ground that she hadn’t filed her complaint earlier, and criticized Ledbetter’s argument that “alleged victims of pay discrimination” deserve “more time before they are required to file a charge” with the Equal Employment Opportunity Commission. “She claims that pay discrimination is harder to detect than other forms of employment discrimination,” Alito noted skeptically, before stating flatly that the Justices were not “in a position to evaluate” the soundness of such arguments.
As the years have gone on, it’s become increasingly common to see Alito fret over the burdens of certain classes of people while downplaying those of others. In his Hobby Lobby opinion, he suggested that requiring corporations whose owners had religious objections to contraception to provide birth-control coverage in their health plans would “effectively exclude” those owners “from full participation in the economic life of the Nation.” As Neil Siegel, the Duke law professor, has noted, Alito seemed to be, for ironic effect, referring to the line from the Casey opinion arguing that control over reproduction helps women “participate equally in the economic and social life of the Nation.”
In Alito’s dissent in Obergefell, the same-sex marriage case, he worried about the emotional and reputational ramifications for certain Americans—not L.G.B.T.Q. people but anyone who might want to keep disapproving of them (or discriminating against them). The decision, he complained, would be used “to vilify Americans who are unwilling to assent to the new orthodoxy.” The majority opinion argued that the First Amendment protected the speech of such Americans—that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction” against same-sex marriage. Alito was unpersuaded, writing, melodramatically, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
Unlike Roberts, who also dissented but acknowledged the other side’s perspective (“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision”), Alito had nothing to say to gay people. His only mention of the cruelties that the L.G.B.T.Q. community had experienced was this: “Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.” Obergefell was, of course, a decision about extending rights, not about exacting revenge.
In last term’s Second Amendment case, the Court overturned a New York State law requiring people to show “proper cause” in order to carry a concealed handgun in public. In Alito’s concurrence, he showed ample sympathy for people who wanted to tote guns in cities where they feared street crime. But he seemed indifferent to New Yorkers who fear mass shootings, or who have been victimized by gun violence, or who simply object to the ubiquity of guns and want laws curbing access to them (a majority of Americans, as it happens). He professed bafflement about why Justice Breyer, in his dissent, had cited the seemingly endless chain of mass shootings in the United States. “Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home?” Alito asked. Then, in a startlingly tone-deaf turn, he tried to score a point by invoking a recent tragedy: “How does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.”
The Dobbs opinion is blinkered in similar ways. Alito emphasizes that the Roe decision immediately caused political fallout for “those on the losing side—those who sought to advance the State’s interest in fetal life.” Opponents of abortion “could no longer seek to persuade their elected representatives to adopt policies consistent with their views.” It’s strange, then, that Alito’s opinion shows so little interest in the workability or consequences of overruling Roe—especially given that he hammers Roe and Casey for establishing impracticable standards based on fluctuating knowledge about fetal development. Rebouché, the Temple law professor, said of Alito’s opinion, “The mentality is ‘This should have been illegal in the first place, so who cares about those people who had a legal right one day and woke up the next day and now it’s a crime?’ ”
Tonja Jacobi, of Emory, found Alito’s opinion appallingly lazy, given that it was issued half a century after Roe: “Even if you believe that life begins at conception—even if that were scientifically, demonstrably true—what do you do about that? Can you still ask someone to potentially sacrifice health and well-being—maybe their life—in favor of this other life? If I drive recklessly and put someone in the hospital and they’re going to die, I still have no obligation to give them my kidney. To me, the opinion elides the most difficult questions. It just reiterates arguments made by Justice William Rehnquist in his dissent in Roe.”
Alito’s opinion, Neil Siegel noted, condemns Roe for having “deepened division.” The nastiness of Alito’s opinion in Dobbs, he said, “performs exactly what it criticizes Roe for doing.”
Why is a man who is winning as much as Sam Alito is so furious? If last term was the equivalent of a grand slam for him, the coming term may be even better: the conservative majority will have a chance to roll back affirmative action, and to further weaken the Voting Rights Act of 1965. Conservative activists have been celebrating their victories and looking ahead with excitement. In Newsweek, the conservative commentator Josh Hammer declared that the next steps were clear, and included interpreting the Fourteenth Amendment’s equal-protection clause to ban abortion nationwide as well as “delivering a fatal blow to the ahistorical misnomer of ‘separation of church and state.’ ” Hammer concluded with a Biblical flourish:
“Justice, justice shall you pursue,” reads Deuteronomy 16:20. Not proceduralism, that is, but justice—the rewarding of good and the punishing of evil within the confines of the rule of law. The modern conservative legal movement just had its most successful Supreme Court term; now it’s time for real, meaningful justice.
By all appearances, Alito has enjoyed a smooth upward path in life, from his Ivy League degrees to his appointment, while still in his fifties, to the Court—the dream job that he’d set his sights on in college. In 1985, he married Martha-Ann, who is from Kentucky. They now share a lovely house in Alexandria, Virginia. If the Alitos weren’t crazy about the fact that picketers gathered outside their home after the Dobbs draft leaked, they might consider that Justices generally have a lower profile and a more private life than many members of Congress, while wielding much greater power. The Alitos often turn up at glamorous society parties. The year they attended the Dancing Stars Gala, a charity event, one of the dance-contest judges was the former Trump Administration press secretary Sean Spicer. The Alitos travelled to Beverly Hills to attend a fiftieth-anniversary party for Thomas Aquinas College, a Catholic institution. “What the founders of the College were professing constituted the real counterculture,” Alito told the crowd, at the Beverly Wilshire hotel.
Perhaps Alito wants the Court’s rightward turn to accelerate further. And maybe the Court itself, to the extent that it’s a microcosm of America, has become a source of aggravation. Tonja Jacobi, of Emory, and Matthew Sag, a law professor at Loyola University Chicago, recently studied fifty-five years of oral arguments at the Supreme Court, and they found that since 1995 the Justices have been interrupting one another and the lawyers more frequently. The Justices ask more “non-questions”—comments and declarations rather than queries. Jacobi and Sag tie these developments to our increasing polarization. Today’s Justices, they contend, act more like lawyers during oral argument. Jacobi and Sag have also found that Justices in the ideological minority—the liberals, now—tend to speak more, in order to “push back against the dominant group.” For Alito, liberals talking more might be a particularly galling development.
Throughout the decades, Alito and Alice Kelikian, his old friend from Princeton, have grown apart intellectually: in May, she signed a petition, organized by a group of women from the Princeton class of 1972, denouncing the Dobbs opinion. But she has remained fond of Alito personally, and when, not too long ago, he invited her to visit him in his chambers she enthusiastically accepted. She told me that she asked him what it was like to be on the Court, and recalled him saying, “It’s like having tenure, Alice. You’re stuck for the rest of your career with people you can’t stand.”
A former law clerk of Alito’s told me, “There’s a natural isolation that comes from being on the Court, and also from having clerks that come from only one perspective.” In the past, the former clerk said, “there had been more of a tradition” of appellate courts and the Supreme Court “hiring nonideologically,” meaning that conservative judges had at least one liberal clerk fairly often. This now happened rarely, in part because of the Federalist Society’s influence in filling clerkship slots for conservative jurists. The former clerk had found Alito to be “a kind person on a personal level,” so it “felt very sad and difficult” that he seemed to have become “more rigid and intolerant over the years”—that “he and others like him see the world changing, and feel they are being left behind and somehow being disrespected.”
In the end, Alito may be angry for the same reasons that many conservatives of his demographic are angry—because they find their values increasingly contested; because they feel less culturally authoritative than they once were; because they want to exclude whom they want to exclude, and resent it when others push back. Neil Siegel told me he thought Alito was frustrated because he knows, at some level, that he is fundamentally “dissenting from American culture and where it is ineluctably heading—a society that is increasingly diverse and secular.” As Siegel put it, “The Supreme Court doesn’t really have the power to change that.” Maybe not. But Alito is clearly trying. ?
