People disagree about what to make of Supreme Court Justice Samuel Alito’s recent remark that in today’s climate of political polarization, “one side or the other is going to win.” It has been interpreted as an “anodyne“ description of that polarization, or as a “horrific” claim that compromise is impossible — and that Alito is one of the partisans.
Either reading is plausible, standing alone. In the context of his considered views as presented in his judicial opinions, the nastier view is the more persuasive.
At a dinner hosted by the Supreme Court Historical Society on June 3, a liberal documentary filmmaker, Lauren Windsor, asked Alito questions implying that she was far to the right, and secretly recorded the conversation.
“I don’t know that we can negotiate with the left in the way that needs to happen for the polarization to end,” she told him. “I think that it’s a matter of, like, winning.” He responded: “I think you’re probably right. On one side or the other — one side or the other is going to win. I don’t know. I mean, there can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So it’s not like you are going to split the difference.”
Consider two of the issues that most obviously resist compromise: abortion and same-sex marriage. Alito is not alone in opposing these constitutional rights. But it’s the way in which he defends those conclusions that is remarkable and scary. Faced with the contending sides, he is exquisitely sensitive to any slight to members of his tribe — while major, life-changing injuries to those on the other side have zero weight.
His opinion for the court in Dobbs v. Jackson Women’s Health Organization, which trashed the right to abortion, needed to account for its impact on the millions of women who had made life plans on the assumption that they could control their fertility. He responded with contemptuous dismissal.
Reliance on past decisions is long recognized as a particularly powerful reason not to overrule them. The Dobbs dissenters pointed out that women “rely on their ability to control and time pregnancies when making countless life decisions: where to live, whether and how to invest in education or careers, how to allocate financial resources, and how to approach intimate and family relationships.” Taking away that right “destroys all those individual plans and expectations.”
Alito retorts that “it is hard for anyone — and in particular, for a court — to assess” the “effect of the abortion right on society and in particular on the lives of women.” This is a “novel and intangible form of reliance.” How, he innocently wonders, can a court possibly know whether women’s lives will be disrupted by unintended, inescapable pregnancy?
In Obergefell v. Hodges, Alito dissented from the court’s decision that same-sex couples were entitled to marry. He complained that the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” More recently, he and Justice Clarence Thomas complained that recognition of same-sex couples’ right to marry “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots.”
The branding certainly happens, and it is reprehensible. But it is not caused by Obergefell. Overturning that decision will not make it stop. This is magical thinking. Anyway, it is senseless to use conservative Christians’ legitimate objections to their stigmatization as a reason to attack other people’s families.
The notion that harm to some people matters and harm to others doesn’t is even more evident in an apparently unrelated area of the law. In order for federal courts to have jurisdiction over a dispute, the plaintiff has to show that he or she has suffered an injury that the courts can redress. This produces the law of “standing,” which often turns on which injuries count for legal purposes.
An empirical study of Alito’s standing decisions offers a remarkable finding: When the Supreme Court is not unanimous, conservative litigants get Alito’s vote 100 percent of the time. Liberal litigants get it 0 percent of the time. No other justice exhibited so stark a pattern.
It was revealed a year ago that Alito had been given a luxury fishing trip to Alaska, paid for by a billionaire who had repeated business before the court. There continues to be debate about whether this was corrupt. But tribal loyalty is an even deeper kind of corruption, affecting a broader range of cases.
Duke Law Professor Neil Siegel’s analysis of Alito’s jurisprudence found a consistent theme: “Justice Alito voices the concerns of Americans who hold traditionalist conservative beliefs about speech, religion, guns, crime, race, gender, sexuality, and the family.” His work tends to hew with remarkable closeness to the agenda of the Republican Party.
In the recorded conversation, Windsor, pretending to be a right-winger, said: “I think that the solution really is like winning the moral argument. Like, people in this country who believe in God have got to keep fighting for that, to return our country to a place of godliness.” Alito responded: “I agree with you.”
Alito seems to construe his role not as that of a judge, but as an advocate. He zealously represents his clients. If one side is going to win, he knows which side he is on.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press).
