16 October 21
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If he wants the public to see the Court as apolitical, he should try meeting that standard himself.
Alito’s speech perfectly encapsulated the new imperious attitude of the Court’s right-wing majority, which wants to act politically without being seen as political, and expects the public to silently acquiesce to its every directive without scrutiny, criticism, or protest. (As if oblivious to the irony, Alito’s office set ground rules barring media outlets from transcribing or broadcasting in full the speech at the University of Notre Dame, in which he delivered his complaint.)
Last month, that conservative majority allowed Texas’s most recent restrictions on abortion to go into effect. Without exceptions for rape and incest, the Texas law bars abortions after six weeks, before most women know they are pregnant, and deputizes citizens to sue those who “enable” abortions after that period for a $10,000 bounty. At midnight on the day after the law took effect, the Republican appointees on the Court, except for Chief Justice John Roberts, insisted that a procedural scheme adopted by anti-abortion activists for the precise purpose of avoiding judicial review had tied their hands.
This success by anti-abortion activists, who nullified a constitutional right merely by outsourcing its enforcement to private citizens, naturally drew scrutiny. The Court’s ruling appeared on its “shadow docket,” the emergency orders that the Court issues outside the regular process of review with limited briefing and without oral arguments—and thus without the typical degree of attention from the public or the justices themselves. In his speech, Alito said there was “absolutely nothing new about emergency applications,” and complained of “all the media and political talk about our sinister shadow docket.”
But no one actually disputes the necessity of emergency orders. In the piece Alito quoted, I noted that “there are some circumstances in which the Court needs to act quickly to prevent some imminent or irreversible harm. There’s nothing inherently sinister about that.” The term shadow docket was coined by a former Roberts clerk six years ago; it is not an invention of Alito’s Lügenpresse. The negative connotations it has more recently assumed are entirely a product of the Court’s selective use of the mechanism to make sweeping decisions and deliver rapid victories to right-wing causes.
The Supreme Court is making greater use of emergency orders in that it is issuing them more frequently, in more significant and lasting ways, and with outcomes that favor the right. This is not a matter of opinion; it is statistical fact. It is also an argument raised by the other justices on the Court in their dissents to the Texas decision. Alito’s Trumplike broadside against the media, in other words, was also a means of mocking his own colleagues, while insisting that the Court is not partisan and that the justices are not political. He can do this, I would add, because the 6–3 conservative majority on the Court means he is unlikely to ever need their votes.
Alito’s complaint about my description of the substance of the Court’s ruling was just as meritless as his grousing about my description of the process by which it was delivered. The practical effect of the Supreme Court’s September decision was to deny Texans the right to decide when to end a pregnancy, and many—those who can afford it—are going out of state for treatment. Anti-abortion activists are so delighted with the law’s impact that they are trying to dissuade people from suing under the law, because that might subject it to substantive review by the courts more swiftly. The whole idea of the law was to prevent women in Texas from being able to obtain abortions for as long as possible. It would be wrong to say that Roe has been overturned, but it is beyond dispute to say that its protections are no longer in effect in Texas. In a word, it has been nullified.
The reporters who cover the Supreme Court are a hierarchical bunch, as anyone who has had to sit in the fourth row of the press area, straining to see or hear the proceedings, will tell you. They are decorous and proper and deferential to the justices. The longtime SCOTUS reporters for outlets such as The New York Times and The Washington Post did not even link to my piece that Alito was mischaracterizing so that their readers could make their own judgments; His Honor’s word would do. And yet here is the Times:
He addressed the recent decisions in unusual detail, rejecting, for instance, what he said was the “false and inflammatory claim that we nullified Roe v. Wade” in early September by allowing a Texas law that bans most abortions after six weeks to come into effect.
“We did no such thing, and we said so expressly in our order,” he said, quoting from it. Indeed, the majority in the 5-to-4 ruling said it based its decision on procedural grounds and did not address the constitutionality of the Texas law.
The effect of the ruling, however, has been to deny abortions to most women in Texas. In dissent, Justice Elena Kagan wrote that the majority’s unsigned order “illustrates just how far the court’s ‘shadow docket’ decisions may depart from the usual principles of appellate process.”
This is the closest a Supreme Court reporter for a major outlet gets to saying, “Although the justice insisted the liquid was rain, chemical analysis shows the composition to be identical to urine.” Few if any reports saw the decisions as affirming the constitutionality of the Texas law, but many observers surmised that the majority was happy to leave it in place for now, because it does not think women should have the constitutional right to decide whether to carry a pregnancy to term, and therefore does not consider circumstances in Texas to be a matter of significant concern.
It is entirely possible that Texas’s law will be struck down while other Roe-defying restrictions on abortion are affirmed—many opponents of abortion find the Texas law objectionable because of its structure. But that would not change the circumstances in Texas at this precise moment, where Roe’s guarantees no longer apply.
Indeed, on October 6, the federal judge Robert Pitman briefly blocked the Texas law—before the conservative Fifth Circuit stayed his ruling. “From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution,” Pitman wrote in his 113-page opinion. “That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.” How dangerous. How inflammatory. How obvious.
Alito might simply have focused, in his speech, on the procedural issues that the majority hid behind in its Texas opinion—but this wasn’t enough. He wanted to act like a GOP-primary candidate and wag his finger at the press, and he did so with a level of dishonesty and obfuscation you might expect from a politician. I have had more honest interlocutors on Twitter, people whose handles were puns on bodily secretions. Alito’s claims were below the level of what you would find in a Facebook thread from an anti-vax group. It is a style of argument that belongs at a Thanksgiving dinner with exasperated blood relatives in New Jersey.
The rank dishonesty and arrogance of Alito’s speech at Notre Dame are symptoms of the conservative majority’s unchecked power on the Court, and the entitlement that flows from having no one around you who can tell you what you sound like. It is not simply enough for the right-wing justices to have this power; Alito insists that the peasantry be silent about how they use it, and acquiesce not only to their delusions of impartiality but to their mischaracterization of verifiable facts. These are imperious demands for submission from someone who is meant to be a public servant.
I understand the value of pursuing impartiality as a judge—there is a similar case made in journalism for pursuing objectivity. Even if humans are incapable of being impartial or objective, the thinking goes, they should try. But it is one thing to pursue impartiality or objectivity in good faith, and another to use those concepts in the defense of ideologically motivated conclusions. Alito’s approach to the law, and to criticism of the Court, is an example of the latter.
The justices’ claims to be apolitical are belied by the decades of advocacy by the conservative legal movement and oceans of cash that it has spent to put them on the Court. They are belied by the trajectory of their own careers, which they pursued with the desperate ambition of being elevated to the Court. And they are belied by their own actions on the Court, despite their insincere, performative testimonies about judicial restraint.
During his speech, Alito quipped that “journalists may think we can dash off an opinion the way they dash off articles.”
On the contrary. Journalists have to do their own work. I don’t have a hand-picked team of law clerks to do the heavy lifting for me, and I am not shielded from my own errors of fact and judgment by a lifetime appointment. If Alito wants the public to see the Court as apolitical, he should try meeting that standard, instead of lecturing others for not blinding themselves to the obvious.
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