Alito: The fulcrum of the conservative Court

When conservative Supreme Court observers wax poetic about their favorite justices from what one might call the “Federalist Society era” of Republican appointments, Clarence Thomas and the late Antonin Scalia take precedence. The oldest may prefer the late William Rehnquist, for a time the lone “originalist” on the court; the youngest may prefer Neil Gorsuch, the libertarian radical appointed by President Donald Trump in 2017.

But it may be Samuel Alito, who was appointed as George W. Bush’s second choice for the vacancy created by the retirement of Sandra Day O’Connor in 2005, who will be remembered as the most consequential of them all. In her biography of the 98^th person to serve as an Associate Justice of the Supreme Court, The Federalist editor-in-chief Mollie Hemingway outlines why: Justice Alito is the pivot or the fulcrum of the Court’s conservative majority, the one on whom the others rely to orchestrate and direct it on major cases.

What is an “originalist”?

Since the Federalist Society rose to prominence in the 1980s as a response to the “living constitutionalism” of the liberal Supreme Court majorities that had held power until that time, conservative and Republican jurisprudence has largely adhered to a school of constitutional interpretation known as “originalism.” Put simply, originalism seeks to apply the meaning of legal texts (such as the U.S. Constitution) as they were when those legal texts were enacted or ratified, rather than subjecting them to analysis using contemporary moral or political standards.

Its pre-1980s rival interpretive school, dominant on the Supreme Court from the 1950s under Earl Warren through the 1990s as espoused by William Brennan and Thurgood Marshall, was “living constitutionalism.” Hemingway quotes Justice Brennan saying in opposition to Reagan Attorney General Edwin Meese, who had made a public defense of the then-novel originalist approach in 1985: “We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans.” Hemingway adds that Brennan argued “the ultimate question was ‘what do the words of the text mean in our time.’” Such an approach gave liberals like Warren, Brennan, and Marshall near-unlimited leeway to rewrite American law and custom on matters ranging from state-legislative apportionment to capital punishment to (most notoriously) abortion.

Today, originalism has proved so successful, and Presidents George W. Bush and Donald Trump planted so many originalists into the federal judiciary, that even liberal jurists who are functionally living constitutionalists like Justice Elena Kagan will occasionally claim to employ originalist methods.

An accidental justice?

Hemingway breezes over Justice Alito’s early life and education, touching them in a largely perfunctory manner (though some facts, such as Alito’s Vietnam War-era service in the Army Reserve, were new to me). This is not a personal story; it is a political one (ironic, for a jurist Hemingway insists is not a politician). Detailed are tales of Alito’s work in the Reagan administration Justice Department and his appointment to and service on the Third Circuit Court of Appeals, where he distinguished himself as a pragmatic conservative marked by personal introversion.

We are told of the summer and fall of 2005, when the near-simultaneous retirement of O’Connor and death of Rehnquist led to the appointment first of now-Chief Justice John Roberts, whose lack of public record and unwillingness to align himself with the “originalist” label or the Federalist Society foreshadowed his future position as the least reliable of the 21st century Republican appointees. After Roberts had replaced Rehnquist, President Bush first turned to his White House Counsel Harriet Miers, as he wanted to replace O’Connor with another female justice. But Miers’s appointment outraged the conservative base, who doubted her ideological fidelity, and her initial interviews with senators were underwhelming. Hemingway is charitable to Miers; she credits her poor interviews to Miers’s background as a corporate litigator rather than a constitutional advocate or jurist, and notes that Miers aided Alito’s confirmation process after withdrawing her own nomination.

And so President Bush called on Samuel Alito, who had been a semifinalist for both open seats, as the substitute. After what Hemingway depicts as a fish-out-of-water relocation to D.C. from his judicial seat in Newark and firm but fair (at least compared to those of some of his Republican-nominated colleagues) confirmation process, Alito took a seat on the Court in January 2006.

Controversy and steadfastness

Hemingway details the various controversies, many of them ginned up by organized left-wing groups such as Demand Justice and Fix the Court (both products of the Arabella Advisors Group-breeding stable), that have swirled around the Court since 2016. She notes that Alito and his wife, alongside Justice Thomas and his wife, have been targeted on all sorts of trumped-up claims of malfeasance, perhaps most cynically Alito’s wife’s taste in American historical flags and statement-making flags. But the targets are not necessarily Thomas or Alito, who are functionally indifferent to left-wing pressure campaigns: leftists may hope to subtly influence the younger Trump-nominated justices, who have not yet demonstrated their unflappability.

The fulcrum

Hemingway is adamant that Justice Alito is not a politician. She writes explicitly: “He is not a politician or glad-hander. His personality and way of life are shockingly normal. He occupies an exalted position that is ordinarily attained only through relentless diplomacy and self-promotion, traits no one has ever observed in him.”

And while there is no reason to doubt that characterization, it undersells the role Justice Alito plays on the court, in part due to his unflappability. Hemingway extensively details how Alito, once derided by liberals as “Scalito” due to his conservatism and Italian-American heritage, diverged from the jurisprudence of Antonin Scalia and the rest of the conservative originalists with whom he has served. Alito has described himself as a “practical originalist,” and Hemingway opens the case files to show how Alito’s pragmatism, which Hemingway credits to his past roles as a federal prosecutor and long-serving appellate judge, differs from those of his originalist colleagues.

Justice Thomas has spent his long, now near-record tenure expounding an idiosyncratic view of how the Fourteenth Amendment works to protect rights against state and local government abuses, which often leaves him on a jurisprudential island. Neil Gorsuch is ideologically libertarian, aligned with Native American tribes based on his background in the American West, and inclined to follow his interpretation of text wherever it leads, practicalities be accursed. Justice Brett Kavanaugh is more conventional and inclined to share many of Chief Justice Roberts’ concerns about the court’s so-called “legitimacy,” if also unwilling to pervert his jurisprudence in similar fashions to the Chief. And Justice Amy Coney Barrett is of an academic disposition: She spent just under three years as a federal judge before her elevation to the Court after two decades in legal academia, making her perhaps averse to taking action on a realistic timeframe.

And in the middle (dispositionally, if not ideologically) sits the practical Alito. When the Court’s conservative majority needs an opinion that can deliver the conservative/originalist result while maintaining a jurisprudence amenable or inoffensive to the majority’s many subtle divisions, it is as often as not Alito’s name that is called. He wrote Janus v. AFSCME, holding a group that included Chief Justice Roberts and former Justice Anthony Kennedy together to overturn mandatory union fees for government workers. He wrote McDonald v. Chicago, extending the protections of the Second Amendment to the state level without offending Thomas’s distinctive jurisprudence. On a matter Hemingway identifies as critical to Alito’s thinking, religious freedom, he authored Burwell v. Hobby Lobby, overruling Obamacare mandates requiring certain private companies to provide contraceptives through their health insurance programs. When a majority must be massaged to hold together the coalition, it is often Alito who plays the role of the orchestrating “pivot” midfielder, creating the play from deep in defense, while his more prominent colleagues collect the plaudits.

Dobbs

And then there is the one opinion to rule them all: Dobbs v. Jackson Women’s Health Organization, the ruling to overturn the national right to abortion discovered in Roe v. Wade. Given the fiascoes surrounding the case, most notably the still-unsolved leak of the unreleased majority opinion but also an attempt on Justice Kavanaugh’s life for which the perpetrator was given a reduced sentence by a leftist federal judge because he claimed transgender identity (presumably after the conclusion of drafting, since Hemingway does not mention that particular offense against the rule of law by its supposed champions), Hemingway devotes an entire chapter to it.

Alito wrote the decision. He was again chosen by his colleagues (specifically Justice Thomas, for reasons of Supreme Court convention not needed to be explained here) to hold together a bare majority in a consequential case. The details of how the ruling was carried to completion are depressing in the cynicism they reveal from the liberal justices, especially Elena Kagan, whom—despite attempts to assassinate the conservative justices, and thereby prevent the leaked ruling from issuing—Hemingway asserts made every effort to stall its issuance.

But in the end, Alito did “the hard thing”; Roe, considered a blot on constitutional law first by both sides but later only by lonely conservatives, is no more.

Beyond Alito

Dobbs is the sort of opinion that some might consider a career capstone, especially with a potentially fleeting political window to see oneself replaced by a successor aligned with one’s broad jurisprudential and ideological track open. If Justice Alito does take a well-deserved retirement under a Republican President and Senate, it would behoove those selecting his replacement to remember his position on the “team” rather than just his ideology. For a non-politician, he has proven an exceptional coalition-builder. While Thomas, Scalia, Gorsuch, and others may chase headlines, he creates goals for the team. When he leaves, he will be missed.

Source: https://capitalresearch.org/article/alito-the-fulcrum-of-the-conservative-court/