Some baby boomers were permanently shaped by their participation in the countercultural protests and the antiwar activism of the nineteen-sixties and seventies. Others were shaped by their aversion to those movements. Justice Samuel Alito belongs to the latter category. For many years, he lacked the power to do much about that profound distaste . . .
Now, though, Alito is the embodiment of a conservative majority that is ambitious and extreme. (He declined to be interviewed for this article.) With the recent additions of Brett Kavanaugh and Amy Coney Barrett to the Court, the conservative bloc no longer needs Roberts to get results. And Alito has taken a zealous lead in reversing the progressive gains of the sixties and early seventies—from overturning Roe v. Wade to stripping away voting rights.
Alito now seems to be saying whatever he wants in public, often with a snide pugnaciousness that suggests his past decorum was suppressing considerable resentment.
Last term, Alito landed the reputation-defining assignment of writing the majority opinion in Dobbs v. Jackson Women’s Health Organization, which eliminated the constitutional right to abortion enshrined by Roe nearly fifty years ago. In May, a draft of his opinion was leaked, and from start to finish it sounded cantankerous and dismissive. “Roe was egregiously wrong from the start,” Alito declared. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.” He likened Roe to Plessy v. Ferguson, the notorious decision upholding segregation; approvingly cited centuries-old common law categorizing a woman who received an abortion after “quickening” as a “murderess”; and used the inflammatory word “personhood” when describing “fetal life.”
After the draft leaked, many Court observers predicted that, though the opinion’s substance wasn’t likely to change, its tone surely would. . . . But the final version was virtually unchanged, save for the addition of a sharp rebuke to the dissent.
“We saw an emboldened Alito this term,” Lazarus said. “Unlike when he first joined the Court, he no longer needs to curry favor from the Chief.” Roberts’s view of Dobbs was characteristic: he has long favored narrowly tailored opinions that foster consensus among the Justices and, perhaps, avert political chaos.
Thomas and Alito have adopted a more combative approach—one that finds no great value in privileging precedent, especially if the precedent emanates from the sixties, when Chief Justice Earl Warren was pushing the Court leftward.
Some Justices, attentive to the immediate human risks of revoking the right to abortion, might have at least put on a show of sober humility. . . . . In July, Alito, who is seventy-two, delivered a speech at the Palazzo Colonna, in Rome, for a gathering hosted by the University of Notre Dame Law School’s Religious Liberty Initiative—a conservative group that has filed amicus briefs before the Court. . . . Though the speech focused on one of his favorite topics—the supposed vulnerability of religious freedom in increasingly secular societies—he couldn’t resist crowing about Dobbs.
Alito’s childhood and adolescence coincided with a social transformation for which the Warren Court provided the legal underpinnings. . . . Alitos were Catholic and belonged to the Our Lady of Sorrows Parish. By the time Alito entered high school, he had developed a keen interest in the law, and was taking note of the Warren Court’s reshaping of American life, which included landmark rulings desegregating schools and other public facilities; recognizing a right to contraception for married couples and to interracial marriage; barring state-sanctioned school prayer; and guaranteeing access to public defenders for indigent criminal defendants.
Alito told the conservative commentator Bill Kristol that the experience made him “start to think about the Constitution and what it meant,” adding, “There’s nothing in the Constitution about the exclusionary rule. The Fourth Amendment says no unreasonable searches or seizures. But that’s it. So where did this come from? . . . What legitimizes something that is not in the Constitution?”
In Reynolds v. Sims (1964), the Court affirmed the so-called one-person-one-vote rule, an attempt to remedy the overrepresentation of rural voters. It required the states to form legislative districts of roughly equal population—or, as Warren wrote in the opinion, to at least make a “good faith effort.” Alito has written that such opinions helped make him an ardent conservative. . . . . He added that he had particularly opposed the Warren Court’s decisions “in the areas of criminal procedure, the Establishment Clause, and reapportionment.”
If Alito is still fighting against the Warren Court of the sixties, he is now in an incomparably more powerful position. Richard L. Hasen, a law professor at U.C.L.A. who studies elections, told me that Alito “has indicated he remains skeptical of the one-person-one-vote rule.”
[O]n his 1985 application for the Office of Legal Counsel job, he had listed membership in an organization called the Concerned Alumni of Princeton (cap). The group was made up of disgruntled former Princetonians who criticized various changes on campus, including coeducation and the university’s efforts to recruit minorities and public-school graduates.
No matter how much individual states, cities, clinics, and activists push back against Dobbs, it will impose a fundamental—and, for a majority of Americans, undesired—reordering of women’s reproductive lives and expectations of equality. . . . . millions of Americans have constructed their lives with the expectation that abortion (and birth control) would be available. And surely part of the Court’s job is to ponder the likely consequences of upending such an expectation. . . . . Alito seemed willing to accept the notion of reliance in only one realm: property and contracts.
As the liberal Justices pointed out in their dissent, the Dobbs decision endangers other Supreme Court precedents. In particular, it leaves vulnerable the cases that established “unenumerated rights” to privacy, intimacy, and bodily autonomy—rights that the Constitution did not explicitly name but that previous Court majorities had seen as reasonable extensions of the liberties protected by the Fourteenth Amendment. Many Americans have also built their lives on precedents such as Griswold v. Connecticut, the 1965 case confirming the constitutional right of married couples to buy and use contraception; Loving v. Virginia, the 1967 case declaring bans on interracial marriage unconstitutional; Lawrence v. Texas, the 2003 case recognizing a right to same-sex intimacy; and Obergefell v. Hodges, the 2015 case recognizing a right to same-sex marriage. Would Alito grant that these decisions have created reliance interests?
In Dobbs, Alito promised that those other precedents are safe . . . But Alito’s assertion about the singular preciousness of a fetus does not alone create a legal standard. . . . . The anchoring logic of Alito’s opinion is that rights not stipulated in the Constitution pass muster only if they have long been part of the nation’s traditions. By this standard, what is to preclude the undoing of the right to same-sex marriage guaranteed by Obergefell? Tellingly, Alito furiously dissented in that case, saying that a right to same-sex marriage was “contrary to long-established tradition.” Indeed, Clarence Thomas, in his Dobbs concurrence, argued that the particular cases protecting same-sex marriage and intimacy, along with contraception, were very much up for reconsideration.
Some conservative skeptics of originalism were particularly frustrated with a 2020 majority opinion by Justice Gorsuch concluding—ostensibly through originalist logic—that Title VII prohibitions on employment discrimination applied to gay and transgender people. (Alito dissented, declaring that the inclusion of L.G.B.T.Q. people in Title VII protections “will threaten freedom of religion, freedom of speech, and personal privacy and safety.”)
This past term, Alito got the most attention for Dobbs, but he also signed on to several other 6–3 decisions that achieved right-wing goals. He joined a far-reaching decision curtailing the Environmental Protection Agency’s ability to limit carbon emissions without congressional authorization. He also joined an opinion compelling Maine to subsidize the tuition of students attending religious schools, and a decision that expanded the right to carry firearms in public.
Richard L. Hasen, the election-law expert, told me that Alito is “uniformly hostile to voting rights,” and has been a “major force” in the Court’s support for corporate spending in campaigns. Alito encouraged the filing of suits that have allowed the Court to curb the power of public-sector unions. He authored the 5–4 opinion in Burwell v. Hobby Lobby Stores (2014), which exempted some companies from providing contraception coverage to their employees, and he has helped advance a new regime of jurisprudence strengthening the rights of religious people—especially conservative Christians, and especially when their beliefs conflict with anti-discrimination law.
Ira (Chip) Lupu, an emeritus professor at George Washington University Law School with an expertise in religion, believes that Alito has crudely applied “an entirely appropriate concern about persecution of vulnerable minorities, including religious minorities, around the world” to the way “conservative religious people, mainly Christians, are in conflict over matters like L.G.B.T.Q. rights and the status of women and reproductive freedom in this country.” Christian Americans, Lupu argued, “don’t get persecuted—they get disagreed with.” He continued, “Yes, sometimes they are under certain obligations as citizens. They might face non-discrimination laws.
Alito has warned that, as Americans become more secular, the U.S. may become less attuned to the constitutional rights of religious citizens. But when he makes this argument a curious elision sometimes occurs, and he seems to be saying that the growing percentage of secular people is in itself a form of religious persecution.
In a 2011 article in the Times Magazine, Emily Bazelon noted that Alito’s opinions occasionally display some empathy, but that it “rarely extends to people who are not like him.” This selective quality, she argued, offers an insight into “conservative instincts” about “who deserves our solicitude.”
As the years have gone on, it’s become increasingly common to see Alito fret over the burdens of certain classes of people while downplaying those of others. . . . In Alito’s dissent in Obergefell, the same-sex marriage case, he worried about the emotional and reputational ramifications for certain Americans—not L.G.B.T.Q. people but anyone who might want to keep disapproving of them (or discriminating against them).
In last term’s Second Amendment case, the Court overturned a New York State law requiring people to show “proper cause” in order to carry a concealed handgun in public. In Alito’s concurrence, he showed ample sympathy for people who wanted to tote guns in cities where they feared street crime. But he seemed indifferent to New Yorkers who fear mass shootings, or who have been victimized by gun violence, or who simply object to the ubiquity of guns and want laws curbing access to them (a majority of Americans, as it happens).
The Dobbs opinion is blinkered in similar ways. . . . . Alito’s opinion shows so little interest in the workability or consequences of overruling Roe—especially given that he hammers Roe and Casey for establishing impracticable standards based on fluctuating knowledge about fetal development. Rebouché, the Temple law professor, said of Alito’s opinion, “The mentality is ‘This should have been illegal in the first place, so who cares about those people who had a legal right one day and woke up the next day and now it’s a crime?’ ”
Why is a man who is winning as much as Sam Alito is so furious? If last term was the equivalent of a grand slam for him, the coming term may be even better: the conservative majority will have a chance to roll back affirmative action, and to further weaken the Voting Rights Act of 1965. Conservative activists have been celebrating their victories and looking ahead with excitement. In Newsweek, the conservative commentator Josh Hammer declared that the next steps were clear, and included interpreting the Fourteenth Amendment’s equal-protection clause to ban abortion nationwide as well as “delivering a fatal blow to the ahistorical misnomer of ‘separation of church and state.’ ”
In the end, Alito may be angry for the same reasons that many conservatives of his demographic are angry—because they find their values increasingly contested; because they feel less culturally authoritative than they once were; because they want to exclude whom they want to exclude, and resent it when others push back. Neil Siegel told me he thought Alito was frustrated because he knows, at some level, that he is fundamentally “dissenting from American culture and where it is ineluctably heading—a society that is increasingly diverse and secular.” As Siegel put it, “The Supreme Court doesn’t really have the power to change that.” Maybe not. But Alito is clearly trying.
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