Home / General / Judging without law: the ballad of Sam Alito

Judging without law: the ballad of Sam Alito


A good comprehensive account of the worst Supreme Court justice since World War II:

But this flag is hardly an isolated incident. On the bench, Alito is the Supreme Court’s most unrelenting Republican partisan — a reliable vote for whatever outcome is preferred by the GOP’s right wing, regardless of whether there is any legal support for that position. Alito isn’t simply a bad judge; he is the negation of law, frequently embracing claims that even intellectual leaders within the conservative movement find risible.

The morning before the Times published its flag scoop, for example, Alito published a dissenting opinion claiming that the Consumer Financial Protection Bureau, the brainchild of Democratic Sen. Elizabeth Warren, was unconstitutional. The opinion was so poorly reasoned that Justice Clarence Thomas, ordinarily an ally of far-right causes, mocked Alito’s opinion for “winding its way through English, Colonial, and early American history” without ever connecting that history to anything that’s actually in the Constitution.

Off the bench, meanwhile, Alito has a long history of making partisan statements that are just ambiguous enough that he can deny he was bemoaning a Republican defeat in a recent election. A little more than a week after Democratic President Barack Obama won his 2012 reelection race, Alito spoke to the conservative Federalist Society, where, quoting from one of his least favorite law professors, he warned that America is caught in a “moment of utmost sterility, darkest night, most extreme peril.”


Alito frequently mocks his colleagues, even fellow Republicans, when they attribute government policies to anti-Black racism. After Justice Neil Gorsuch wrote in a 2020 opinion that the states of Louisiana and Oregon allowed non-unanimous juries to convict felony defendants more than a century ago to dilute the influence of Black jurors, Alito was livid, ranting in dissent: “To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism.” 

Yet while Alito denies that racism might have motivated Louisiana’s Jim Crow lawmakers in the late 19th century, he brims with empathy for white plaintiffs who claim to be victims of racism. When a white firefighter alleged that he was denied a promotion because of his race, Alito was quick to tie this decision to the local mayor’s fear that he “would incur the wrath of … influential leaders of New Haven’s African-American community” if the city didn’t promote more non-white firefighters.

Empirical data shows that Alito is the most pro-prosecution justice on the Supreme Court, voting in favor of criminal defendants only 20 percent of the time. But he’s tripped over himself to protect one criminal defendant in particular: Donald Trump. An empirical analysis of the Court’s “standing” decisions — cases asking whether the federal courts have jurisdiction over a particular dispute — found that Alito rules in favor of conservative litigants 100 percent of the time, and against liberal litigants in every single case.

There’s a lot more here, including systematic data along with examples of the worst from the Alito anti-canon.

The bottom line:

Alito — a judge with no theory of the Constitution, and no insight into how judges should read ambiguous laws, beyond his driving belief that his team should always win — is the perfect fit, in other words, for what the Republican Party has become in the age of Trump.

My only quibble here is that it’s very instructive that the worst justice on the Supreme Court is a George W. Bush nominee. The Court is one of the strongest example that Trump is more symptom than cause with the threat posed by the Republican Party — Trump’s judicial nominees are bad precisely because he’s an orthodox opinion on the issue.

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