'Not surprised': Justice Alito defends controversial speech as he marks 15 years on Supreme Court
WASHINGTON – Associate Justice Samuel Alito, an anchor of conservative thought on the Supreme Court, said he wasn't surprised by the backlash he received recently following a gloves-off speech in which he asserted coronavirus restrictions had created a "constitutional stress test" by placing unprecedented limits on individual freedom.
Responding to a question about the fracas from USA TODAY, the court's fourth-most senior justice defended the parts of the Nov. 12 speech to the Federalist Society that drew the most controversy, noting they had come directly from several of his recent opinions – in some cases with nearly identical language.
"Virtually every substantive point in the Federalist Society speech was taken from one of my published opinions or an opinion I joined," Alito, who on Sunday marks his 15-year anniversary on the high court, said in a statement.
But Alito, who warned during the November speech that his remarks might be "twisted," also indicated he wasn't fazed or particularly startled by the blowback.
"I was not surprised by the reaction," he said.
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Speaking to a group of conservatives and libertarians days after the bitterly fought presidential election, Alito let loose on what he described as previously "unimaginable" state-imposed restrictions during the coronavirus pandemic – lamenting the "severe, extensive and prolonged" lockdown policies he said amounted to a "constitutional stress test."
With his flair for slicing to the core of an argument, Alito pointed to Nevada Gov. Steve Sisolak’s decision in May to impose less rigid attendance limits on casinos than churches, noting the Constitution doesn't include a "blackjack clause" to protect gambling the same way it protects religion. Alito said he wasn't criticizing the policies – "I’m a judge, not a policymaker," he said – but said the restrictions raise profound questions.
To his critics, the speech was "nakedly partisan," prompting Sen. Elizabeth Warren, D-Mass., to opine that justices aren’t "supposed to be political hacks." The criticism amplified an effort gaining momentum on the left in Washington to impose changes on the nation's highest court, such as by imposing term limits.
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But for Alito's admirers, the remarks and his published opinions on the issue, underscored his longstanding role as one of the court’s most reliable conservative voices. Put another way, some observers said, if people were surprised by Alito’s remarks last fall, maybe they shouldn’t have been.
"He’s not afraid to be alone on things,” said Adam Ciongoli, a former Alito law clerk. "Justice Alito is a shy person but he does not shy from controversy because, in my experience, he has a very clear sense of what his role is and what is right and wrong."
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Now, with Associate Justice Amy Coney Barrett ostensibly giving conservatives a 6-3 advantage on the court, Alito, 70, finds himself in a pivotal position. Part of his influence, some said, could be felt in the longstanding debate over what role justices play – and what they bring of themselves – to interpreting the law.
"I don’t see him changing," Ciongoli added of Alito. "What I do see is the landscape of the debate shifting in a way that very interestingly puts his philosophy and his personality and orientation as a figure in the middle of that debate."
Textualist v. textualist
Fifteen years into his tenure, Samuel Anthony Alito Jr., a New Jersey native who replaced Justice Sandra Day O’Connor, has hewn closely to what conservatives had hoped for when President George W. Bush nominated him for the job in 2005: He has opposed same-sex marriage, abortion, labor protections and, more recently, restrictions on churches and synagogues imposed during the COVID-19 era.
“Justice Alito is not going to surprise you,” said Josh Blackman, a professor at South Texas College of Law in Houston who follows the court closely.
But he also is a leading voice in a debate over the meaning of "textualism," or the theory espoused by the late Justice Antonin Scalia that jurists should decide questions based on the textual meaning of the Constitution and statutes. Tension over the practicalities of the theory were evident in a 2020 case in which the court ruled a decades-old civil rights law barring workplace sex discrimination applied to gay, lesbian and transgender workers.
Associate Justice Neil Gorsuch, writing for a 6-3 majority, found that when the law barred discrimination based on "sex" that it necessarily means LGBTQ people were also protected, even if the law's authors didn't envision that protection. When a company fires an employee for being gay, he wrote, it "necessarily discriminates against that individual in part because of sex."
But Alito argued the majority opinion got the concept all wrong. The court, Alito said, must take into account what the words in the law meant to people at the time they were written. And "sex," he wrote at the time, meant something different from "sexual orientation."
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In his statement to USA TODAY, Alito referred to his feisty dissent in the case, summarizing the point of his opinion as: "The textualist argument of the majority was not true to Justice Scalia's understanding of textualism."
"The court's opinion is like a pirate ship," Alito wrote in the dissent. "It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated – the theory that courts should 'update' old statutes so that they better reflect the current values of society."
Consistent conservative
Alito wrote a landmark 5-4 decision in 2014 exempting Hobby Lobby and other businesses with religious objections from the Affordable Care Act's "contraceptive mandate.” Four years later, he authored the 5-4 decision that overturned a 41-year-old precedent allowing public employee unions to demand fees from non-members.
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He crafted the majority opinion in a 2010 case that found the Second Amendment’s right to bear arms was a limitation on cities and states, effectively striking down a handgun ban in Chicago and nearby Oak Park, Ill. Last year, he wrote the majority opinion denying damages to the family of a Mexican teen who was killed by a U.S. Border Patrol agent because the boy was on the Mexican side of the border at the time of the fatal shooting.
Alito authored another decision last year that found religious schools are exempt from most employment discrimination claims, expanding the autonomy of religious employers that has been at the center of several recent cases.
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Those decisions – and others like it – have drawn criticism from the left.
"He is consistently on the far right of the court, though with Trump’s appointments the court has moved right to meet him," said William Yeomans, a lecturer at Columbia University and longtime Justice Department official who also served as counsel to the Senate Judiciary Committee under the late Sen. Ted Kennedy, D-Mass.
"Whether his consistency reflects political views or ideology, the results align closely with the political views of the Republican Party," Yeomans added.
Alito's associates say he brings an open mind to cases and that his opinions are based not on partisanship but a deeply held belief that courts have a narrow role.
"I see him as a justice who is committed to a vision of the judicial role -- who sees that role as a limited one," said David Moore, who clerked for Alito on the U.S. Court of Appeals for the Third Circuit and then again on the Supreme Court and who is now a law professor at Brigham Young University.
Carrie Severino, president of the conservative Judicial Crisis Network, described Alito as “unapologetically committed to the rule of law, regardless of popular trends.”
Empathetic justice?
Republicans slammed then-Sen. Barack Obama in 2005 when he pointed to "empathy" as part of a test for weighing Supreme Court nominees. Though the word became toxic in conservative legal circles, viewed as a departure from the idea of adhering to the text of the Constitution, Alito often delves into the human impact of the law in his opinions.
"There's a strong argument to be made that he is President Obama’s definition of an empathetic justice if that justice is conservative instead of progressive," said Jonathan Adler, a professor at Case Western Reserve School of Law.
"If you look at Justice Alito's opinions, I think you see a lot of empathy," Adler said.
Alito, a former prosecutor, was the lone dissenter from a 2011 ruling that upheld the right of members of the Westboro Baptist Church to interrupt a fallen Marine’s funeral by shouting homophobic slurs.The majority found the protests were protected under the First Amendment. Alito disagreed.
“Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq,” Alito wrote. “Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace.”
During his confirmation hearing, Sen. Tom Coburn, R-Okla., asked Alito to comment about his "heart." Alito said he "can't help but think" of his own ancestors when considering immigration cases or about his family when hearing cases involving children. Asked whether that approach had evolved for him after 15 years on the high court, Alito referred to an interview last year on the website We The Italians.
In that piece, Alito talks at length about how his grandparents immigrated to the United States from Italy, and about the contributions both nations have made to each other. He also described being "very upset" about a push to remove statues of Christopher Columbus, celebrated by some as a symbol of Italian heritage and condemned by others as a symbol of colonization of indigenous Americans.
Critics say Alito's empathy extends only one way: Toward conservatives.
"Empathy is among the last words that come to mind when thinking of Justice Alito and his record on the Supreme Court," said Jennifer Pizer, director of law and policy at Lambda Legal, an LGBTQ advocacy group. "To those of us trying to protect civil rights, he sometimes has seemed almost disingenuous in his discounting of the human impact of his decisions."
Pizer pointed to the Hobby Lobby case, among others, and the Federalist Society speech, which she referred to as an "impassioned call to arms for the far right."
"We have seen precious little evidence of empathy,” she said.
Never flinched
Alito's associates describe a justice who is soft-spoken, humble – "boring," in his own words. Former law clerks noted Alito has taken time to offer personal tours of the court to their families, years after they parted ways. His supporters recall stories about Alito wearing a name tag at pre-pandemic functions, which they point to as a sign of his modesty.
If you didn’t recognize Alito, Ciongoli said, "he would never tell you what he did."
Dan Coats, the former Indiana senator, ambassador to Germany and director of national intelligence for President Donald Trump, recalled his experience guiding Alito through the Senate confirmation process 15 years ago. Coats said Alito was so unassuming that he joked members of his own family didn't always recognize him when they gathered at large reunions. He remembered Alito being "shocked" by the rows of news cameras lined up during the process.
"For him it was somewhat of a traumatic experience," Coats said.
But Coats also remembered a nominee so brilliant that senators found excuses during their meet-and-greets to duck out 20 minutes into an hour-long meeting because there wasn't much room to win an argument. During marathon hearings that were often contentious, Coats remembered Alito being rational and disciplined.
"He never flinched," Coats said.
That doesn’t mean the diehard Philadelphia Phillies fan hasn’t at times invited controversy.
Years before his Federalist Society address last fall, Alito drew attention for mouthing the words "not true" during Obama’s 2010 State of the Union address. Asked about the incident, Alito later told The Los Angeles Times he once lost points as a student debater for making a face that revealed he disagreed with an opponent.
“It’s something I should have learned in high school,” he told The Times.
'Dagger at the heart'
He may be soft-spoken, but Alito is also known as a sharp questioner.
Leah Litman, a professor at University of Michigan Law School, has been tracking the amount of time each justice speaks as the court conducts its arguments by phone during the pandemic. In October, she found, Alito took more time – 4,991 seconds – than anyone else.
As the justices debated a case in November about whether a Catholic foster care organization in Philadelphia can refuse to certify same-sex couples as foster parents, Alito went bluntly to what he saw as the center of the issue.
"If we are honest about what's really going on here, it's not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents," Alito said, noting no same-sex couples had asked the Catholic group for certification – they had gone elsewhere. "It's the fact that the city can't stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage. Isn't that the case?"
Neal Katyal, a former acting U.S. solicitor general arguing for Philadelphia, countered that it wasn't. But the question nevertheless put Alito's views about religious freedom at the center of the discussion.
Adler described Alito as the type of questioner lawyers have to pay especially close attention to or risk winding up in a trap.
"There are lots of cases where Alito's questions are just a dagger at the heart," Adler said.
This article originally appeared on USA TODAY: Supreme Court: Justice Samuel Alito marks 15 years on high court
