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Reviews |  Samuel Alito: An Angry Man

In the popular imagination, Brett Kavanaugh is the angry judge — thanks to his searing opening statement during his confirmation hearing in 2018. But Kavanaugh’s reasoning from the bench is legalistic, his tone measured, his academic interests ranging down to technique, even esotericism. Not so Alito: In the Dobbs draft, in his earlier abortion rulings, in his affirmative action opinions and elsewhere, there is a deeply personal and emotional quality that other judges lack. deer is “grossly false and deeply damaging”. Same-sex marriage should not be recognized as a constitutional right because such a ruling “will be used to defame Americans… who don’t want to accept the new orthodoxy.” The hypothetical risk of critical speech protected by the First Amendment, for Alito, was enough to deny the dignity of marital recognition to same-sex couples.

Seething, resentful anger can be traced to a wayward confirmation hearing in 2006, from which his wife fled in theatrical tears. He recorded himself during the first official State of the Union address by a black president, when Barack Obama’s comments about a campaign finance decision prompted Alito to visibly respond “not true.” When fellow female justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan read the opinions from the bench, Alito repeatedly pursed his lips, rolled his eyes and (again) said “no.” Perhaps Alito is subjecting the white male antagonists to the same openly dismissive — and obviously unwise — displays of contempt. But there is no public record to suggest as much.

Instead, Alito’s anger consistently resonates in a register of cultural decline, lamenting the growing importance of women and minorities in American life. Drafting of the majority opinion in hobby hall, which endorsed a company’s right to deny employees contraceptive coverage, Alito spoke lyrically about “men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.” . Women deprived of medical care that facilitates participation in the labor market, on the other hand, were not a problem. Reviewing a Washington state regulation on pharmacists, Alito quickly detected “hostility” to conservative religious beliefs. And in an opinion repudiating New Haven’s efforts to promote more black firefighters, Alito went through the history of the case alone 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. The involvement of blacks in municipal politics, for Alito, appears as a sinister threat to public order.

In contrast, when the accusation of discrimination is made on behalf of racial or religious minorities, Alito does not express such solicitude. He does not look for evidence of bias. Instead, he takes an incredibly narrow view of job discrimination that demands that women instinctively know they are paid less than their male counterparts. Despite his claim to a “just the facts ma’am” approach, Alito has a markedly restricted view of what the “facts” are. To read her opinions is to inhabit a world in which it is white Christian men who are the main targets of heinous 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 struck down Florida’s death penalty regime on the grounds of the Sixth Amendment, only Alito dissented. When the court a year earlier found a federal sentencing rule for armed offenders unconstitutionally vague, only Alito voted for the charge. It’s hard to think of instances where Alito voted for a criminal defendant, or any other litigant who elicits liberal sympathies.

Looking forward in anger, Alito’s voice anticipates and resonates with a growing Republican Party constituency. Political scientists like Ashley Jardina call it “white identity politics.” At the center of this worldview is a (false) belief that white people are increasingly being discriminated against. It is also important to believe that speaking English, being a Christian, and being born in the United States are predicates for being American. Paradoxically, then, even as he wraps himself in the cloak of the law, Alito may well be the most democratic of judges: one who has power because his accent rings with increasing political force in electoral politics.

Where could this anger lead? In November 2020, Alito gave a keynote address to the conservative legal organization the Federalist Society. Highly criticized at the time for their partisan tone “befitting a Trump rally”, in the words of one critic, the remarks are helpful because they foreshadow where a court on which Alito is a dominant voice might go.

In that speech, Alito criticized pandemic restrictions by lamenting the rise of “scientific” policy-making. He complained about the “protracted campaign” and “economic boycotts” of Catholic groups and others with “unpopular religious beliefs” (self-identified Christians make up about 63% of the US population). And he (falsely) warned against “morning after pills that destroy an embryo after fertilization”. If this discourse is any guide – and there’s no reason to think it won’t – the future of the Supreme Court will increasingly be one of religious censorship: keeping women in their lanes, stand up for Christian rights and make sure the arrogant “scientists” of the federal government don’t get what they want.

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