Samuel Alito Just Took an Indefensible Jab at the Progressive Justices

[In It to Win It]

Slate

No paywall

The Wall Street Journal’s opinion section published a softball interview with Samuel Alito on Friday in which the Supreme Court justice once again flaunted his ability to troll the public without facing any consequences. The piece—authored by a conservative commentator and a Republican lawyer rather than real journalists—centered on Alito’s claim that Congress cannot impose an ethics code, or perhaps any rules whatsoever, on the Supreme Court. “No provision in the Constitution,” he declared, gives Congress “the authority to regulate the Supreme Court—period.” That declaration drew the most attention and controversy, in part because the justice appears to have forgotten about a provision of the Constitution that explicitly grants Congress authority to regulate the court, even using the word regulation.

This focus on Alito’s claim of absolute immunity from democratic accountability, however, obscured an equally strange and offensive comment from the interview. After describing his conservative colleagues’ differing methodologies, the justice told his interlocutors: “I don’t see that there’s a difference in interpretive method” among the three liberal members of the court. His message was hard to miss: The Republican-appointed justices have unique and complex approaches to the law, “very serious differences” that lead to fissures within the 6–3 supermajority, demonstrating intellectual integrity over results-based judging. The Democratic-appointed justices, by contrast, apply the exact same methods, which typically lead to the same outcomes. The implication seems to be that the conservatives are neutral arbiters of the law who follow unbiased judicial philosophies to their logical conclusions, while the progressive justices are inclined toward activist judging to reach liberal ends.

Conservative media figures frequently flatten the three progressive justices’ jurisprudence in this way, accusing them of voting in lockstep to reach Democrats’ preferred results. It is no surprise that Alito would echo this complaint, given his evidently avid consumption of right-wing media. But only a victim of late-stage Fox News–brain could support this conclusion. Today’s left-leaning justices use very different tools to interpret the law. Their methodologies are principled and personal, leading to surprise rulings every term. On many big issues of the day, do they reach the same bottom-line conclusion? Sure. But on plenty of other big issues, they disagree sharply. And even when they do reach parallel verdicts, they often follow divergent paths to reach their destination.

Before turning to those justices, let’s examine the dichotomy that Alito set out in his therapy session with the article’s authors, James Taranto and David Rivkin. (Side note: Rivkin is a lawyer with business before the court in a case next term and also is representing Leonard Leo’s efforts to block the Senate Judiciary Committee’s investigations into Leo’s dark money groups). Alito highlighted his own disagreement with Justices Clarence Thomas, Neil Gorsuch, and John Roberts to illustrate divisions within the conservative bloc. Of Thomas, he noted a tendency to give “less weight” to precedent, which Alito deemed “a virtue of his jurisprudence” because he “sticks to his guns.” Of Gorsuch, he pointed out a focus on pure legal questions over real-world impact, calling the justice “definitely not a consequentialist.” Of Roberts, he said the chief justice “puts a high premium on consensus” and seeks “to protect the prerogatives of the judiciary.” Then, on the other hand, he put the progressive justices in the same box, accusing Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson of using the same “method,” without elaborating on what it might be. (A real journalist might have asked the justice to flesh out this remark, but there were no real journalists in the room.)

Alito is mistaken.

Link to tweet

[NoMoreRepugs]

1. If my father was alive he'd say "pound salt" to SammyBoy.

[niyad]

2. sammy should quit wasting oxygen.

[orleans]

15. i was just thinking the same thing -- only not as politely nt

[GenThePerservering]

3. The old fool who uses a 17th century witch-hunter

in jurisprudence says what?

[Freethinker65]

4. Alito is drunk with power and loves that he can deny rights to anyone he chooses

He truly believes that by seeking out and citing obscure laws throughout history to take rights away from groups he personally despises, he should be admired.

[Blue Owl]

5. Thank you Dubya for blessing us with this piece of shit

[brush]

7. Amen.

[Sympthsical]

8. You can thank Steve Schmidt

Before people send him another $20 to make another cheap YouTube video, know that he was one of the driving forces that got us Alito.

[madaboutharry]

6. People wear their hate on their face.

Look at him. He is a man full of piss and vinegar and a dark hateful heart.

He looks like a miserable and unhappy man regardless of all his power and privilege.

[Dave says]

9. I realize it would be a stretch, but ...

Couldn’t justices be indicted for receiving bribes? This wouldn’t be Congress trying to impose rules of ethical behavior. Take the man out from the judge frock. Then they are just men. And, if we are that shining city on the hill it would be because no man stands above the law. Arrest them for accepting bribes.

Maybe in a just world …

[carpetbagger]

10. It's not direct bribes, and they've gutted bribery laws anyway.

I've been a broken record on this one though.....

A future court needs to look at this court's decisions, particularly with decisions would be different if Alito and Thomas recused based on their compensation, starting with Citizens United, and throw out the notion that a compromised judge can set a precedent.

If we ever get to a court where there is ethics oversight, even internally, it would be a strong possibility that the winds would shift sufficiently for that court to then deny stare decisis to Clarence Thomas' sugar daddies.

[lees1975]

11. Yes, they can be.

But the problem is, who would do it? And are the laws tough enough to get a conviction? We are seeing, in our time, one of the weaknesses of the Constitution, which is that it is difficult to enforce laws on those who are in government, because it takes a sense of patriotism and national unity that partisanship has caused to evaporate from Congress, especially among Republicans who count the seats they have, instead of worring about the corruption they spread.

Alito is one of those who believes that he is above the law because he is a supreme court justice. And technically, as long as no one does anything about it, and there's no public pressure or demand to act, he is above the law.

[Zeitghost]

13. You can try and convict

If you have evidence.

But it would still take impeachment to remove them from the bench.


The Constitution gives Congress three checks on the Supreme Court. The power to approve appointments, the power to impeach Justices and the power to regulate appellate jurisdiction.

[Pas-de-Calais]

12. Alito acts like he has a dementia

[RobinA]

19. My Thought Exactly

after my first thought - Is this guy off his meds?

[uponit7771]

20. +1

[Silent Type]

14. He and some other right wingers will be gone relatively soon. Need Dem Prez, Sen.

[Initech]

16. Fuck you Alito!

Also fuck you Wall St. Journal!

[SunSeeker]

17. Alito's temperament disqualifies him from serving on a traffic court, let alone the Supreme Court.

Such a bitter right wing political hack, and flaming asshole.

[niyad]

18. It seems that just about everyone is ignoring the obvious lockstep that is the

three progressive justices, and that makes ole 17th century sammy peptic. What do the three progressive judges have in obvious common??? THEY ARE WOMEN.