Supreme Court Justice Alito’s Crusade Against a Secular America Isn’t Over


Another classmate of Alito’s, the future Fox News analyst Andrew Napolitano, later offered the Princeton Alumni Weekly what might have been a more persuasive explanation: “There were two types of conservatives at Princeton—those who were conservatives before Ronald Reagan and those who were conservatives after. If you told Ed Meese”—Reagan’s hard-line Attorney General—“you were a member of cap, that told him you weren’t a new arrival. It was a way of saying, ‘I’m the real thing.’ ”

For Alito, Yale Law School, too, was mined with countercultural bombs. In 2005, a member of Alito’s class, Diane Kaplan, told the Yale Daily News that “a lot of us were hippies, love children, political dissenters, draft dodgers.” She noted that Alito and his Princeton friends “came to class with buttoned-down collars and looking very serious.” Alito has described his classmates as “overwhelmingly liberal,” but noted that there “were a few of us conservatives kind of hiding,” among them Clarence Thomas and John Bolton, who served briefly as President Donald Trump’s national-security adviser.

“I’ve always wanted to learn to swim, but it’s never been more than thirty minutes since my last meal.”

Cartoon by Kaamran Hafeez and Vincent Coca

Alito had come to Yale eager to study with one of his intellectual heroes, Alexander Bickel, a charismatic and prolific scholar who believed that the Warren Court had indulged in egregious activism. But Alito wasn’t placed in Bickel’s constitutional-law class. Alito’s friend Mark Dwyer, meanwhile, was assigned to the staunchly conservative scholar Robert Bork’s course, and he later told the Times that Alito had seemed jealous. In one of the worst pairings of student and professor in course-scheduling history, Alito ended up with Charles Reich, the eccentric counterculture guru who had written the best-selling manifesto “The Greening of America.” (An excerpt appeared in this magazine.) Alito, having read the book, formally requested to switch out of the class, but he was told no.

Reich loved flower-child sensibilities as much as Alito hated them—he saw even bell-bottoms as a form of rebellion worth validating. Before joining the Yale faculty, he had been a clerk for Justice Hugo Black and a lawyer at élite firms, but by the time Alito arrived in his class Reich had embarked on a long, strange trip as a public intellectual and a freewheeling seeker. Reich interviewed Jerry Garcia for Rolling Stone and, in a law-review article, criticized police harassment of citizens, folding in his own unpleasant encounters with cops. Many students were charmed and inspired by Reich: Bill and Hillary Clinton both studied with him. (When Bill Clinton became President, one of his environmental initiatives was called the Greening of the White House.) Alito was not one of those students. In appearances and interviews, he has spoken disparagingly of Reich’s “most bizarre course.” Reich, Alito said, told his students that he “had a ticket to San Francisco in his desk and at some point during the term it was possible that there would be a note on the bulletin board that he had gone to San Francisco, and the course would then be over.” Alito recalled that, sure enough, he returned from Thanksgiving break to find just such a note. He joked to Kristol that he was “self-taught” in constitutional law.

At Yale, Alito’s occasional high jinks seem to have been as old-school as they were at Princeton. Grais told me that Mark Dwyer “used to smoke a pipe, and Sam took a rubber band and cut it up in little pieces and mixed it in with his tobacco.” Alito sometimes had a glass of Scotch, Grais recalled, and Dwyer once put “salt in Sam’s ice cubes.”

In December, 2008, when Alito had been on the Court for nearly three years, he spoke at a fund-raising gala in Washington for the right-wing magazine The American Spectator. Now that his position was secure for life, he could afford to be a little caustic about that whole sixties thing. He poked fun at the left’s idealism by drawing a parallel between Barack Obama and Eugene McCarthy—the liberal icon who unsuccessfully ran for the Presidency in 1968 while, in Alito’s words, “promising to restore hope and bring about change.” No doubt to the bafflement of many younger people in the audience, he mocked the psychedelic band Country Joe and the Fish as well as its Vietnam War protest song “I-Feel-Like-I’m-Fixin’-to-Die Rag.” Alito complained that “for the past forty years there have been places in this country, sort of like the island in ‘Jurassic Park,’ where it’s always been 1967.” But if sixties-inflected views still reigned in outposts like academia, there was cause for conservative triumphalism. During the Warren Court era, Alito said, “the legal vanguard” had imagined that “the law would move dramatically” leftward—“but they turned out to be wrong.” To laughter, he added, “To coin another phrase, ‘Sweet dreams and flying machines in pieces on the ground.’ ” Alito was quoting the James Taylor song “Fire and Rain.” Those lyrics, of course, aren’t about the crushing of progressive dreams—they’re about Taylor’s addiction struggles and a friend’s suicide. But you wouldn’t expect a Guy Lombardo fan to know that.

No matter how much individual states, cities, clinics, and activists push back against Dobbs, it will impose a fundamental—and, for a majority of Americans, undesired—reordering of women’s reproductive lives and expectations of equality. In 1992, when the Court upheld Roe, in the Casey opinion, it acknowledged what is known as a “reliance interest.” Two decades had passed since the Court had first recognized a constitutional right to abortion, and since then, as the opinion put it, “people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” Moreover, “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Alito’s Dobbs opinion dismissed this appraisal as an “intangible form of reliance” based on “an empirical question that is hard for anyone—and in particular, for a court—to assess.” Yet millions of Americans have constructed their lives with the expectation that abortion (and birth control) would be available. And surely part of the Court’s job is to ponder the likely consequences of upending such an expectation. Rachel Rebouché, a law professor at Temple University who specializes in health and family law, told me that “courts decide all the time whether or not there are consequences to laws.” Alito seemed willing to accept the notion of reliance in only one realm: property and contracts. “That’s a really formalistic way to think about reliance—a really crabbed notion of what we can know about a law’s effects,” Rebouché said.

As the liberal Justices pointed out in their dissent, the Dobbs decision endangers other Supreme Court precedents. In particular, it leaves vulnerable the cases that established “unenumerated rights” to privacy, intimacy, and bodily autonomy—rights that the Constitution did not explicitly name but that previous Court majorities had seen as reasonable extensions of the liberties protected by the Fourteenth Amendment. Many Americans have also built their lives on precedents such as Griswold v. Connecticut, the 1965 case confirming the constitutional right of married couples to buy and use contraception; Loving v. Virginia, the 1967 case declaring bans on interracial marriage unconstitutional; Lawrence v. Texas, the 2003 case recognizing a right to same-sex intimacy; and Obergefell v. Hodges, the 2015 case recognizing a right to same-sex marriage. Would Alito grant that these decisions have created reliance interests?

In Dobbs, Alito promised that those other precedents are safe, and that abortion is different from other personal decisions because it “destroys” what the Mississippi law “describes as an ‘unborn human being.’ ” He insisted, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But Alito’s assertion about the singular preciousness of a fetus does not alone create a legal standard. Neil Siegel, a Duke University law professor, told me, “ ‘Because I said so’ is not a reason—not in parenting and not in law.” The anchoring logic of Alito’s opinion is that rights not stipulated in the Constitution pass muster only if they have long been part of the nation’s traditions. By this standard, what is to preclude the undoing of the right to same-sex marriage guaranteed by Obergefell? Tellingly, Alito furiously dissented in that case, saying that a right to same-sex marriage was “contrary to long-established tradition.” Indeed, Clarence Thomas, in his Dobbs concurrence, argued that the particular cases protecting same-sex marriage and intimacy, along with contraception, were very much up for reconsideration. (Thomas left out Loving, the interracial-marriage case.)

The Dobbs dissent, issued by Stephen Breyer, Elena Kagan, and Sonia Sotomayor, sharply challenged Alito’s assurances. “Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further,” they wrote. “Scout’s honor. Still, the future significance of today’s opinion will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads.”

In overturning Roe, the Court bolstered not only the anti-abortion movement but also the conservative legal movement—an effort associated with the Federalist Society, which, since its founding, in 1982, has promoted an “originalist” jurisprudence based on narrow readings of the Constitution. Such readings often dovetail with many conservative policy goals, from the dismantling of the regulatory state to the defense of gun rights. If Roe had been upheld—even after Trump had loaded the Court with self-described originalists who, he promised, would overturn the decision—the movement might have reached its breaking point. Last winter, J. Joel Alicea, a former Alito clerk who now teaches law at the Catholic University of America, wrote in City Journal that there was growing tension in the movement between “those who saw originalism as a means to achieving some other substantive end and those for whom it was the only legitimate constitutional methodology.”

Some conservative skeptics of originalism were particularly frustrated with a 2020 majority opinion by Justice Gorsuch concluding—ostensibly through originalist logic—that Title VII prohibitions on employment discrimination applied to gay and transgender people. (Alito dissented, declaring that the inclusion of L.G.B.T.Q. people in Title VII protections “will threaten freedom of religion, freedom of speech, and personal privacy and safety.”)

If the Court’s originalists couldn’t even successfully deploy their approach to overturn Roe, then what good was it? Alicea wrote that, for the conservative legal movement, the stakes in Dobbs could not be higher: it was either “complete victory or crisis-inducing defeat.” Alito’s opinion was a complete victory. An analysis in National Review hailed the decision as the movement’s “crowning achievement.”

For Alito, Dobbs was also the culmination of a sixteen-year effort to make his mark on the Court. When he first became a Justice, he was often portrayed as a Mini-Me of another Italian American Catholic from Trenton: Antonin Scalia. Some commentators even referred to him as Scalito. But, although the two Justices frequently voted together, they were different in ways both temperamental and jurisprudential. Alito could be as acerbic in his writing as the irrepressible Scalia, but he rarely seemed to be having as good a time. Scalia’s bold commitment to originalist readings of the Constitution sometimes led him to outcomes that he, as a law-and-order type, didn’t much like, such as supporting the First Amendment claims of a flag-burning protester or upholding the Fourth Amendment rights of criminal defendants. Alito adopted a more elastic form of originalism which has allowed him, with plodding consistency, to arrive at results that a loyal Republican would prefer.

Whereas Scalia’s admirers praised his intellectual commitment to originalism, Alito’s admirers in the conservative legal movement often highlight his practical approach. At a recent American Enterprise Institute conference honoring the Justice’s jurisprudence, Keith Whittington, a professor of politics at Princeton, said that Alito’s opinions “can be a little frustrating if what you’re looking for and thinking about is how to draw much broader themes out of his work, as far as theoretical approaches . . . that might apply to a wide array of cases.” But it was “refreshing,” Whittington said, to see a Justice “really try to tie the arguments and the logic and the application to the details of the facts of the situation.”

From 2006 to 2020, four liberal Justices sat on the Court. According to Adam Feldman, of the blog Empirical SCOTUS, Alito is the conservative Justice who has joined with the liberals on the Court the least often. He never once provided them with the swing vote in a 5–4 decision. Since the 2010 term, he has joined with three liberal Justices (and Roberts) only once—in an uncontroversial case that defined the phrase “tangible object” in a criminal statute.

This past term, Alito got the most attention for Dobbs, but he also signed on to several other 6–3 decisions that achieved right-wing goals. He joined a far-reaching decision curtailing the Environmental Protection Agency’s ability to limit carbon emissions without congressional authorization. He also joined an opinion compelling Maine to subsidize the tuition of students attending religious schools, and a decision that expanded the right to carry firearms in public.

The reversal of Warren Court norms may be accelerating under today’s lopsided majority, but Alito has been pushing the Court rightward since his arrival. Richard L. Hasen, the election-law expert, told me that Alito is “uniformly hostile to voting rights,” and has been a “major force” in the Court’s support for corporate spending in campaigns. Alito encouraged the filing of suits that have allowed the Court to curb the power of public-sector unions. He authored the 5–4 opinion in Burwell v. Hobby Lobby Stores (2014), which exempted some companies from providing contraception coverage to their employees, and he has helped advance a new regime of jurisprudence strengthening the rights of religious people—especially conservative Christians, and especially when their beliefs conflict with anti-discrimination law. In environmental cases, according to a forthcoming law-review article by Lazarus, the Harvard Law professor, Alito has joined with “the side supported by environmentalists” only four out of thirty-eight times, making him the Justice least likely to do so. (And those votes came only in cases decided unanimously.)

Nevertheless, Alito’s biting tone in Dobbs represented a significant change. Stephen Vladeck, a constitutional-law professor at the University of Texas, told me, “This was not a decision that is intended to convince anybody other than the folks who support its result. And I don’t mean convince them that Alito and the other conservative Justices are right—I mean convince them that they’re principled.” Dobbs revealed “a bloc of Justices who are increasingly untroubled by the declining public perception of the Court, because they think it’s just pissed-off progressives.” It’s not just pissed-off progressives. Since 2000, as a recent study in the Proceedings of the National Academy of Sciences found, the Court is estimated to have moved “to the ideological right of roughly three-quarters of all Americans.”

Cartoon by Roz Chast

In 2005, not long after Justice Sandra Day O’Connor decided to retire, President George W. Bush nominated Harriet Miers, the White House counsel and his longtime friend, to fill the vacancy. Congressional Republicans and Christian conservatives quickly turned against Miers, igniting what Bush describes, in his memoir, as “a firestorm.” Miers was insufficiently “fancy,” as Bush puts it; she lacked an Ivy League degree, and she hadn’t been an appellate judge or a legal academic. Although she was an evangelical Christian, Miers was further damaged by fears that she was not anti-choice enough. (She had once argued that “self-determination” mattered when it came to abortion.) Bush’s nomination of his confidante also smacked of cronyism. But, according to Ann Southworth, a law professor at U.C. Irvine who has studied the Federalist Society, a major part of “what tanked her is that she was not seen as having come up through the conservative legal movement.” Robert Bork told NPR that Miers’s selection was “a blow” to a “movement that’s been building up for twenty years and now has a great many people who are qualified for the Court but all of whom have been passed over.” Bush soon withdrew Miers’s nomination.

Bush turned next to Alito, partly because Miers had recommended him. Still, when the men met at the White House, Bush found him “as reserved as they come” and “ill at ease.” For the previous fifteen years, Alito had been a federal Court of Appeals judge, on the Third Circuit. As he later recollected in an onstage interview at Duke, his professional life in that role had been almost monastic: “My days consisted of driving to the office, walking up to my chambers, reading and writing, talking to no human beings except my assistants and my law clerks, getting back in my car, driving home, and doing the same thing the next day. Every once in a while, there’d be an oral argument, maybe once every six and a half weeks.” Bush finally broke the ice with Alito by discussing baseball. Alito was such a Philadelphia Phillies fan that he had once spent a week at the team’s Phantasy Camp—a Christmas gift from his wife, Martha-Ann Alito, a former law librarian. (They have two children, Philip, a lawyer, and Laura, a marketing executive.)

Unlike Miers, Alito had an extensive judicial record that included abortion cases: as an appellate-court judge, he was the sole dissenter in a 1991 case that struck down a portion of a Pennsylvania law requiring women, with few exceptions, to notify their husbands before obtaining an abortion. (A year later, when that case made it to the Supreme Court, as Casey, the Justices decided that the spousal-notification rule posed an “undue burden.”) Equally reassuring to conservatives was Alito’s service in the Reagan Administration’s Justice Department. Under Edwin Meese, it had attracted young lawyers itching to roll back abortion rights, certain protections for criminal defendants, and affirmative action (which the Administration portrayed as reverse discrimination against whites).

Alito had joined the Justice Department in 1981, working in the office of the Solicitor General. Many of his colleagues were civil servants who didn’t share his political views. Alito has said that he was initially a “secret conservative.” In 1985, he began slipping out of the office to attend monthly lunch meetings hosted by the Federalist Society, at a Chinese restaurant called the Empress. At one such gathering, he ran into Charles Fried, then the acting Solicitor General. “Oh, what a surprise to see you here,” Fried said. “This is like meeting a friend at a bordello.”


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