The Supreme Court convened on Monday for another exciting round of “how far will they go?” and, as luck would have it, the putative leader of the conservative majority, Justice Samuel Alito, is out on a book tour talking about the philosophy that will guide their decisions.
“So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country” is a collection of essays adapted from speeches he has given since 2007, many with straightforward titles, including “Let Judges Be Judges.” While an associate justice, Alito’s power on the Court shouldn’t be undersold. While all the other conservatives justices — aside from Clarence Thomas — don’t openly identify as originalists, they have shown themselves happy to follow Alito’s lead when it suits their ends. In fact, the so-called Roberts Court, named by tradition after the chief justice, is a misnomer. It’s really the Alito Court, which should send a chill down your spine if you have any concerns about where America is heading.
Alito gave a long interview to CBS News legal correspondent Jan Crawford, addressing a wide range of issues. One wouldn’t call him a charming personality, but he is compelling in his absolute confidence in himself and his ideas. At 76, he seems to be just getting started. He admitted to Crawford that he thinks about retiring, as anyone his age would, but he doesn’t have any intention of doing so at the moment, a fact that must come as a disappointment to both President Donald Trump and congressional Republicans who are struggling to hold on to their majority.
Considering the sad example of the late Justice Ruth Bader Ginsburg, both Alito and Thomas would have done conservatives and Trump a big favor if they had retired during these first two years of Trump domination. Had they done so, they would have been seen as heroes to their fellow right-wing activists.
Trump may think his legacy is in the hideous monuments he’s building to himself, but the Court’s conservative majority will be the lasting mark of his reign. He has already appointed three — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — of the six conservative justices, and if he were able to appoint two more in the vein of Alito and Thomas, but 30 years younger, he would likely seal the nation’s future and benefit his wealthy cronies for generations to come.
Even if the pair had merely hinted they might resign, it would have given the Republicans something to run on in the midterms. Should the Democrats win a majority in the Senate, as they are now increasingly expected to, come January any hopes of appointing a far-right conservative in Alito’s image are dead for at least the next two years. If a vacancy were to happen, presumably the Democrats would invoke the McConnell precedent and keep the seat open until a new president is elected.
“I think I can still make a contribution,” Alito told Crawford. “And it’s hard to give up the opportunity to do something that I think will be good for the Constitution and good for the country as long as I’m able to do it.”
But right now Alito and Thomas are at the height of their power and influence — and they aren’t going anywhere. “I think I can still make a contribution,” Alito told Crawford. “And it’s hard to give up the opportunity to do something that I think will be good for the Constitution and good for the country as long as I’m able to do it.” As Kevin McMahon, a political science professor at Connecticut’s Trinity College, told Reuters, “They have been waiting for a long time to be in the position. So why leave?”
Why leave indeed? Crawford’s analysis of Alito’s power on the Court is that he is now the fulcrum on which its decisions are made. “Alito is especially skilled in bringing together five justices for a majority on some of the Court’s most difficult and contentious issues,” she observes. “The justice often publicly portrayed as unyielding and inflexible is, behind the scenes, the conservative who is uniquely adept at finding common ground on the most divisive issues.”
Alito is certainly having some success with his signature issue, the unitary executive, having been a champion of the right-wing theory since the 1980s, when he worked for Ronald Reagan’s hyper-partisan Attorney General Ed Meese in the Justice Department. As Alito defined it back in 2000, before he was elevated to the high court, the “president has not just some executive powers, but the executive power — the whole thing.” He believes the president has the sole authority over federal agencies and sees presidential power as dominant — well, unless the Supreme Court disagrees and says otherwise.
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All this may seem to be in conflict with Alito’s guiding philosophy of originalism, but he explains that away by calling himself a “practical originalist” who believes that the Constitution is a sort of sacred text that must be taken literally as it was understood at the time of its adoption — unless it just doesn’t seem right. Last week, he wrote a Wall Street Journal op-ed headlined “Even Originalists Make Mistakes,” in which he listed legal scholars and practitioners who, in his estimation, aren’t following the one true creed. But Alito admitted that he, too, must sometimes deviate from the path and make a “reasonable judgment call” that may require him to overturn precedents and that “conditions” may “militate against scholarly purity.”
The justice goes to great lengths to deny that he has any partisan interest, but it’s clear throughout the interview and from his other comments over the last few years that he’s highly partisan and influenced by the right-wing hysteria over the “woke” left. Alito expressed grave concern about presidents criticizing the Court for its decisions, saying that Joe Biden was particularly harsh. But when pushed a bit, he admitted that Trump has been harsh too. That false equivalence is so fatuous it’s embarrassing that a Supreme Court justice would have the gall to utter it.
Biden condemned the Court’s decision to overturn Roe v. Wade by calling it a “tragic error” and “an extreme and dangerous path the court is now taking us on.” The 2022 Dobbs v. Jackson decision did, after all, overturn a constitutional right that had been in effect for 50 years, one that numerous conservative justices had told the Senate and country they considered to be settled law. Trump, on the other hand, has said that members of the Court, especially those he appointed, are “very unpatriotic and disloyal to the Constitution,” when they vote against his wishes. But he hasn’t stopped there. They are also, he said, “an embarrassment to their families, if you want to know the truth” and a “disgrace to our nation.” But then Trump loves Alito and says he “wants to make America great again,” so perhaps the justice agrees with him about his brethren. And why not? They are aligned on virtually every issue.
As the Court’s new term begins, Alito is clearly feeling his oats. He wants to have the influence and power to decide the radical cases that are coming before the court as a result of Trump’s unprecedented power grab under the unitary executive theory. The project is his life’s work. So he’s staying.
But that doesn’t mean that Democrats didn’t dodge a bullet when he refused to retire so Trump could name a young replacement. These days it may be hard to imagine anyone worse than Samuel Alito, but just think about who could have been next. How does Justice Todd Blanche or Justice Aileen Cannon sound?
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