The conservative Supreme Court justice is furious with the pace of social change — and poised to do something about it on Roe and much more
In the popular imagination, Brett Kavanaugh is the angry justice — thanks to his searing opening statement at his 2018 confirmation hearing. But Kavanaugh’s reasoning on the bench is legalist, his tone measured, his scholarly interestsrunning to the technical, even esoteric. Not so Alito: In the Dobbs draft, in his earlier abortion decisions, in his opinions on affirmative action and elsewhere, there is a starkly personal and emotional quality lacking in other justices. Roe is “egregiously wrong and deeply damaging.” Same-sex marriage should not be recognized as a constitutional right because such a decision “will be used to vilify Americans … unwilling to assent to the new orthodoxy.” The hypothetical risk of critical, First-Amendment protected speech, for Alito, sufficed to deny the dignity of marital recognition to same-sex couples.
A seething and resentful anger can be traced to a tetchy 2006 confirmation hearing, from which his wife fled in theatrical tears. It registered during the first official State of the Union address delivered by a Black president, when Barack Obama’s comments on a campaign finance ruling caused Alito to visibly respond“not true.” When his female colleagues Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan have read opinions from the bench, Alito repeatedlywould purse his lips, roll his eyes, and (again) mouth “no.” Perhaps Alito subjects white male antagonists to the same openly disdainful — and nakedly unjudicial — displays of contempt. But there is no public record to suggest as much.
Instead, Alito’s anger consistently sounds in a register of cultural decline, bemoaning the growing prominence of women and minorities in American life. Writing the majority opinion in Hobby Lobby, which endorsed a company’s right to deny employees contraception coverage, Alito waxed lyrically about the “men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.” The women denied medical care that facilitates participation in the labor market, in contrast, weren’t a concern. Examining a Washington state regulation of pharmacists, Alito was quick to detect “hostility” to conservative religious beliefs. And in an opinion repudiating New Haven’s effort to promote more Black firefighters, Alito alone 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 had “threatened a race riot.” Black involvement in municipal politics, for Alito, appears as a sinister threat to public order.
In stark contrast, when the charge of discrimination is made on behalf of racial or religious minorities, Alito expresses no such solicitude. He does not search for evidence of bias. Instead, he takes an impossibly narrow view of job-related discrimination that demands women somehow instinctively know they are being paid less than male counterparts. Despite his claim to a “just the facts ma’am” approach, Alito has a distinctively constricted take on what the “facts” are. To read his opinions is to inhabit a world in which it is white Christian men who are the principal targets of invidious discrimination, and where a traditional way of life marked by firm and clear gender rules is under attack.
When it comes to the criminal justice system, Alito is a reliable vote for the most punitive version of the state. In 2016, when the Supreme Court invalidated Florida’s death-penalty scheme on Sixth Amendment grounds, only Alito dissented. When the court, a year earlier, found a federal sentencing rule for armed offenders unconstitutionally vague, only Alito voted for the prosecution. It’s difficult to think of cases where Alito has voted for a criminal defendant, or any other litigant that elicits liberal sympathies.
Looking forward in anger, Alito’s voice anticipates and resonates with a growing constituency in the Republican Party. Political scientists such as Ashley Jardinacall it “white identity politics.” Central to this worldview is a (false) conviction that whites are increasingly the victims of discrimination. Also important is a belief that speaking English, being Christian and being born in the United States are predicates to being American. Paradoxically, then, even as he wraps himself in the law’s cloak, Alito may well be that most democratic of judges: one who has power because his accent chimes with a growing political force in electoral politics.
Where might this anger lead? In November 2020, Alito gave a keynote speech to the conservative legal organization the Federalist Society. Much criticized at the time for its partisan tone “befitting a Trump rally,” in the words of one critic, those remarks are useful because they prefigure where a court on which Alito is a dominant voice might go.
In that speech, Alito criticized pandemic restrictions by bemoaning the rise of “scientific” policymaking. He complained about the “protracted campaign” and “economic boycotts” of Catholic groups and others with “unpopular religious beliefs” (self-identified Christians make up some 63 percent of the American populace). And he (falsely) warned of “morning after pills that destroy an embryo after fertilization.” If that speech is any guide — and there is no reason to think it won’t be — the future of the Supreme Court will be increasingly one of religious censor: keeping women in their lane, standing up for Christian rights, and making sure that uppity “scientists” in the federal government don’t get their wicked way.“