Samuel Alito makes his mark on Supreme Court
After 10 years, conservative justice earns respect
The issue before
WASHINGTON the Supreme Court was a federal ban on hovercraft inside national parks, and Justice Samuel Alito was in a huff.
Despite special concessions that apply to Alaska, an appeals court had upheld the hovercraft ban there, even on land the federal government doesn’t own. The court’s reasoning didn’t make sense to Alito, and he suspected the Justice Department lawyer defending the ban agreed.
“Why don’t you concede that it’s wrong?” he asked Assistant Solicitor General Rachel Kovner during oral argument last month. “It’s a ridiculous interpretation, is it not?”
The query was vintage Alito, as Supreme Court advocates can attest. On a bench laden with longwinded orators and arm-waving performers, he speaks softly — but with an incisive kick.
Ten years into his tenure on the high court, Samuel Anthony Alito Jr. remains the darling of conservatives and the bane of liberals. His substitution for Sandra Day O’Connor in 2006 represented the court’s most significant shift since Clarence Thomas replaced Thurgood Marshall in 1991. In nearly all respects, he has been as advertised.
Without Alito, the court probably would not have upheld a ban on late-term abortions in 2007, obliterated campaign spending rules for corporations in 2010 or perhaps even struck down a key section of the Voting Rights Act in 2013. This year, he appears poised to take the lead in limiting public employee unions’ ability to collect fees from non-members.
“He is the no-surprise justice,” says William Yeomans, a professor at American University’s Washington College of Law. “He is very much the product of the conservative legal movement.”
ASKING TOUGH QUESTIONS
Alito’s impact has come beneath the radar, at least compared with the more doctrinaire Thomas and the more bombastic Antonin Scalia. Associates say he takes an open-minded approach to the cases that cross his chambers.
“He doesn’t have a grand theory that he’s trying to advance,” says Benjamin Horwich, a law clerk for both O’Connor and Alito in the 2005-06 term. “He is willing to think carefully about issues that others … simply sort of accept as axioms.”
Horwich went on to argue 10 cases before the high court as an assistant solicitor general before entering private practice. Alito’s questions, he says, “were the questions you would dread as an advocate, because they were darn sure the hardest ones to answer.”
Cast originally in the shadow of Chief Justice John Roberts — President George W. Bush’s other nominee, who arrived at the court four months earlier — Alito, 65, has carved a powerful niche for himself over the past decade. Among the five justices nominated by Republican presidents, his vote may be the most reliably conservative — more pragmatic than Scalia and Thomas, more predictable than Roberts and Justice Anthony Kennedy.
Alito landed where conservatives expected on virtually all the major cases of the past decade: against abortion, same-sex marriage, racial preferences, religious discrimination, gun control, campaign-finance restrictions, defendants’ rights, labor rights and minority voting rights.
In 2014, he wrote the 5-4 decision exempting Hobby Lobby and other closely held businesses with religious objections from the Affordable Care Act’s “contraceptive mandate.” Last year, he authored the 5-4 ruling that upheld states’ use of a controversial sedative in lethal injections, despite claims from dissenters that it was akin to being “burned at the stake.”
Alito’s allies say his opinions and dissents don’t spring from an ideological agenda or partisan politics but a belief that courts should limit their involvement in the affairs of state.
“What drives him is a judicial philosophy that’s not about chasing conservative outcomes,” says David Moore, a former Alito law clerk who is associate dean at Brigham Young University’s law school.
In that way, Alito sees eye to eye with Roberts, who has assigned him a major share of the majority opinions in cases where the court is divided.
BATS AND THROWS RIGHT
A hallmark of Alito’s jurisprudence is the tough-on-crime sensibility of a former prosecutor. Though Scalia and Thomas sometimes side with criminal defendants, Alito has found himself on the short end of 8-1 decisions.
He alone voted to uphold an animal cruelty statute banning “crush videos” in 2010 and against the free speech rights of religious zealots protesting at military funerals in 2011. Last month, he defended a Florida death sentence that the court struck down by an 8-1 vote.
A fan of caffeine and the Philadelphia Phillies, the New Jersey native has fanned a few controversies during his tenure.
He famously shook his head and mouthed the words “not true” when President Obama used his 2010 State of the Union Address to criticize the court’s campaign-finance ruling in Citi
zens United v. FEC. He rolled his eyes as Justice Ruth Bader Ginsburg dissented on two employment discrimination rulings in 2013, one of which Alito wrote.
None of those incidents has prompted any erosion in support from those who know Alito as modest, even shy. At a recent reunion of his law clerks held at the court, a photographer asked those posing with the justice to remove their name tags. The former clerks weren’t surprised that Alito, too, was wearing one at a party in his honor.
“He’s very humble,” says Adam Ciongoli, a former Alito law clerk and top Justice Department adviser. “If you were to meet him and not recognize him, it would be unlikely that he would identify what he does for a living.”
“If you were to meet him and not recognize him, it would be unlikely that he would identify what he does for a living.”
Adam Ciongoli, former Alito clerk