Justice Alito's heresy
September was an unusually busy month for speech-making, interviews and public appearances by Supreme Court justices. In the last several weeks, Justices Amy Coney Barrett, Stephen Breyer, and Clarence Thomas have used these occasions to preach the orthodox message that the court is above politics.
Despite their sharp philosophical differences, Barrett, Breyer, and Thomas seemed to be reading from the same liturgy. Responding to eroding public approval of the court and anticipating a series of controversial cases in the upcoming term, these justices spread the gospel of judicial neutrality, independence and impartiality. Justices do not make decisions to please one side or the other in this country's divisive culture wars, they said.
As Breyer put it in a Sept. 13 Washington Post interview promoting his new book, "When a judge puts on that robe, he's not a junior-league politician."
That same day, Barrett echoed Breyer's message with language that was even more blunt: "My goal today," she said, "is to convince you that this court is not comprised of a bunch of partisan hacks." Three days later speaking to a friendly audience at Notre Dame University, Thomas claimed that even in the most controversial cases the justices are not ruling based on "personal preferences." These justices hoped to speak unambiguously.
But last Thursday, when Justice Samuel Alito entered the fray and added his voice to the chorus, his message was heretical, not orthodox. While Alito's speech initially looks like just another effort to bolster the court's standing, what he said undermined the messages of his colleagues and came perilously close to violating the canons of ethics and propriety that govern judicial conduct.
The New York Times rightly labelled Alito's speech "combative" because in it Alito staked out an overtly partisan position on one side of our culture wars.
Alito offered a strident defense of the Court's controversial "shadow docket," a procedure by which it shortcircuits normal procedure and decides cases without full briefing and argument. The court's conservative majority has increasingly used it to accomplish its aims.
The justice also showed no reticence about commenting on three recent, high-profile cases. As Politico reported, "They include a decision earlier this month allowing a controversial Texas abortion ban to go into effect, a ruling last month requiring the Biden administration to reinstate the Trump-era Remain-in-Mexico policy for many who are present at the border seeking asylum, and another decision from August blocking enforcement of a coronavirus-related, federal ban on evictions."
Alito went out of his way to offer a bitter attack on the media and on critics of those decisions. "The media and political talk about the shadow docket," Alito claimed, "is not serious criticism." Drawing on a familiar culture wars playbook, Alito opined that "journalists may think we can dash off an opinion the way they dash off articles."
Impugning their motives and citing no evidence, Alito alleged that critics of the shadow docket are making "unprecedented efforts to intimidate the court or damage it as an independent institution."
For a Justice to publicly wade into the controversy surrounding decisions so recently issued by the court was, as Politico noted, "rather unusual… In addition, at least two of the disputes seem likely to come before the court in some form again in the coming months."
Alito's remarks seem to violate the spirit, if not the letter, of Rule 2.10 of the Model Code of Judicial Conduct. That rule prohibits judges from making "any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing."