‘Gaping hole’ at the Supreme Court
Once conservative allies, Roberts and Alito drifting apart
WASHINGTON — There was a time when Justice Samuel Alito, author of the leaked draft opinion on abortion that rocked the nation Monday night, was Chief Justice John Roberts’ closest ally on the Supreme Court.
They are both products of the conservative legal movement, and they were named to the court by President George W. Bush within months of each other. Their voting records were initially indistinguishable. Indeed, when the chief justice had a particularly difficult case, he would often assign the majority opinion to Alito.
But the dynamics and alliances at the court have shifted, especially after the death of Justice Ruth Bader Ginsburg and her replacement by Justice Amy Coney Barrett.
Once partners, Roberts and Alito are now emblems of a stark divide at the court as it confronts a crucial choice: whether to eliminate the constitutional right to abortion entirely in a case challenging a Mississippi law that bans the procedure after 15 weeks of pregnancy.
“Justice Alito now appears to have concluded he no longer needs the chief to receive coveted opinion assignments,” said Richard Lazarus, a law professor at Harvard. “And, buoyed by a five-justice conservative majority to the right of the chief, Justice Alito has apparently concluded, as underscored by his first draft opinion in the Mississippi abortion case, that he can now swing for the fences using the broadest language possible.”
The two men have been moving in different directions for years, said Lee
Epstein, a law professor and political scientist at Washington University in St. Louis.
“They initially marched in ideological lockstep, seemingly trusted allies,” she said. “But over time, Roberts drifted to the left and Alito drifted way to the right, leaving a gaping hole between them.”
That grew into a chasm in the case challenging Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Roberts, an institutionalist committed to an incremental approach, has signaled that he wants to limit Roe’s reach without destroying it in a single blow. Alito, based on his draft opinion, wants to reduce Roe to rubble.
What accounts for the schism? It’s partly temperament. Roberts is witty, canny
and controlled. Alito can be awkward and aggrieved, although he is capable of humor.
The two men also differ in their sense of urgency. Roberts is 67, which is young by Supreme Court standards. He is committed to playing the long game.
Alito, 72, is not much older, but after the arrival of Barrett in 2020, he is now part of an impatient group of five conservative justices to the chief justice’s right.
But the most important difference between Roberts and Alito is in their titles and what they imply.
Roberts was initially nominated to replace Justice Sandra Day O’connor, who announced in July 2005 that she planned to retire. Two months later, as the confirmation hearings were approaching, Chief Justice
William Rehnquist died.
Bush then nominated Roberts to his current position. If not for that switch, Roberts would have been one of eight associate justices and, in all probability, a reliable conservative member of the court.
As the head of the judicial branch, though, Roberts views himself as having broader responsibilities.
The chief justice’s confirmation hearings were a triumph. Alito, by contrast, felt bruised by some of the questions at his own confirmation hearings. His wife, Martha-ann, left the hearing room in tears when Sen. Lindsey Graham, R-S.C., defended Alito from the charge that his membership in an alumni group was evidence of bigotry.
Nor was Alito pleased when President Barack
Obama criticized the court’s Citizens United campaign finance decision at the State of the Union address in 2010, with six justices present.
Alito responded by mouthing the words “not true.” He has not attended another State of the Union address. Roberts makes a point of going.
Conservatives grew wary of Roberts when he cast the decisive vote in 2012 to uphold a central provision of the Affordable Care Act. Alito joined a caustic dissent.
But aside from that decision and a 2015 sequel, the conservative case against the chief justice was for many years weak.
That changed in the Trump era, when Roberts voted with what was then the court’s four-member liberal wing in cases concerning abortion, young immigrants known as “Dreamers” and adding a question on citizenship to the census. Alito was on the other side in those cases.
The chief justice was also in the majority in 5-4 decisions early in the pandemic upholding restrictions on gatherings at houses of worship. Alito, in a 2020 speech to the Federalist Society, a conservative legal group, was harshly critical of those decisions.
In one, concerning restrictions in Nevada, he said the court had allowed the state to treat houses of worship less favorably than it did casinos.
After the arrival of Barrett changed the direction of the court, the justices started striking down such restrictions by 5-4 votes, with Alito now in the majority.