Samuel Alito: the abrasive justice taking abortion rights back to the 17th century
"For a member of one of the most august and venerable institutions in American public life, Samuel Alito has provoked an astonishing outpouring of jarring adjectives this week. “Appalling and heinous” – Vanity Fair; “acidic and extreme” – Slate; “dreadful and repugnant” – the Washington Post; “scathing and dismissive” – Los Angeles Times.
The strong words were directed at the draft ruling written by Alito and leaked to Politico that, barring a possible but unlikely change of heart by any of Alito’s conservative peers on the US supreme court, will eviscerate federal abortion rights in America.
Though millions had been bracing themselves for the court’s newly emboldened rightwing majority to deliver a blow to Roe v Wade, the constitutional right to abortion that has been law of the land for half a century, Alito’s attack was so brutal and direct it still left many dumbstruck.
“Roe and Casey must be overruled,” Alito wrote, referring to the 1973 landmark ruling along with its 1992 affirmation in Planned Parenthood v Casey. “Roe was egregiously wrong from the start.”
It is conceivable that some of the sharper edges of Alito’s devastating 98-page screed will be smoothed out before the final ruling is delivered in coming weeks. Other supreme court justices, notably Brett Kavanaugh, might demand as much in order to spare their own blushes.
But none of that will alter the fact that Alito will forever be known as the supreme court justice who destroyed a woman’s right to control her own body and who set the US on a regressive course pointing back to the 17th century.
At least that’s what is suggested by some of the juridical reasoning that Alito deploys in his draft ruling. As Emily Bell, director of the Tow Center for Digital Journalism at Columbia University, noted, the draft draws heavily from two treatises written by an English jurist, Sir Matthew Hale, describing abortion as a “great crime” and a “great misprision”.
No matter that Hale was writing in 1673. Or that, as Bell pointed out, his distinguished career included securing the executions of two women as witches and writing the definitive text for a marital rape exemption that said that husbands cannot be culpable of raping their wives because “by their mutual matrimonial consent and contract the wife hath given up herself”.
Alito leans on Hale and other voices from the distant past to underline his main contention: that “the Constitution makes no reference to abortion” and as a result there can be no constitutional right. He glides over the fact that the constitution, written in 1787, equally makes no reference to airplanes, car license plates or Snapchat, though that hasn’t prevented the nine justices applying constitutional laws to those fields.
Alito’s other central argument in scuppering Roe is that constitutional rights have to be “deeply rooted in the Nation’s history and traditions”. Yet, interestingly, that standard makes no appearance in the US constitution either.
That Alito should have made such an abrasively aggressive, no-holds-barred, demolition of Roe v Wade comes as no surprise to those who have observed his style of jurisprudence up close. The justice has a famously quick temper and razor-sharp tongue that he’s even prepared to turn against his colleagues on the conservative side of the court – especially the chief justice, John Roberts, who is looking increasingly isolated amid the rightward march of the majority.
Alito responded derisively to a recent opinion written by Roberts in a religious liberty case relating to same-sex couples fostering children. The ruling sided with the religious group, but for Alito that wasn’t enough.
“This decision might as well be written on the dissolving paper sold in magic shops,” Alito complained.
“He’s very intelligent, extremely aggressive, often sarcastic,” one lawyer who has argued a case in front of Alito told the Guardian. “He’s not pleasant to argue in front of. Other justices are incisive but conversational questioners – he is combative and hostile towards people he doesn’t agree with.”
Alito, 72, was born in Trenton, New Jersey, to an immigrant Italian father and Italian-American mother. Educated at Princeton and Yale law school, he rose up the legal ladder through the US Department of Justice (DoJ) in the Ronald Reagan years.
George W Bush nominated him for a seat on the nation’s highest court in 2006.
His anti-abortion tendencies stretch far back. In 1985, in a job application for a post at the DoJ, he boasted about his contribution arguing before the supreme court that “the constitution does not protect a right to an abortion” – the exact same line he pursues in his draft ruling 37 years later.
In the same job application he also bragged about having argued before the court that “racial and ethnic quotas should not be allowed”. That presents a chilling portent of his position in a separate blockbuster case scheduled to be heard by the supreme court next term that challenges affirmative action at Harvard and the University of North Carolina.
Since joining the court he has staked his position, alongside Clarence Thomas, as the gatekeeper of the court’s reactionary wing. With the recent addition of fellow conservatives nominated by Donald Trump – Neil Gorsuch, Kavanaugh and Amy Coney Barrett – his star is now in the ascendant.
In 2007 he wrote the majority opinion that declined an appeal from Lilly Ledbetter that would have established equal pay for women, on grounds that she had missed a filing deadline. Barack Obama’s riposte came in his very first act as president when he signed into law the Lilly Ledbetter Fair Pay Restoration Act.
The bad blood between the two men thickened in 2010 when Obama used his State of the Union speech to criticize the supreme court for unleashing corporate money into elections with its contentious Citizens United ruling, which Alito supported. “Not true”, lip readers could clearly discern the justice muttering.
A lifelong Catholic who has frequently expressed his fear that the US is moving away from traditional values, the justice has also been at the forefront of the conservative push to advantage religious belief against individual liberty. He wrote the majority opinion in the 2014 Hobby Lobby case that allowed Christian-run companies to forgo contraception in their health insurance packages.
That leaning could prove significant should Alito’s draft ruling overturning Roe become final, potentially unleashing a whirlwind of regressive opinions from the court.
Top of the list of vulnerable targets is same-sex marriage. In his draft ruling, Alito goes out of his way to reassure those concerned about the future of gay marriage by saying that his stance on Roe was unique as “abortion is fundamentally different”.
That’s not what he wrote in his dissent to Obergefell, the 2015 ruling that guaranteed the right of same-sex couples to marry. In it, he asked whether the constitution gives a view on what to do about gay marriage.
“It does not,” he said. “The Constitution leaves that question to be decided by the people of each state.”
If that argument sounds familiar, that’s because it is. It’s identical to the reasoning he presents in his draft ruling eviscerating the right to an abortion."