Perhaps one of the biggest threats to personal freedom in America - including the right to privacy, control over one's own body and relationships, and freedom from government forced religion - now comes from the right wing extremist majority on the U.S. Supreme Court. Clarence Thomas - the dullard of the Court in my long time view - has already signaled that he wants to eliminate same sex marriage, recriminalize same sex relations, and ban married couples from being able to use contraception while seemingly not grasping that he would also open the door for once again banning interracial marriage. But the most frightening member of the Court is Samuel Alito whose temperment and arrogance in the superiority of his beliefs suggests that he would have fit in well with the Spanish Inquisition as it sought to cruelly sought to stamp out supposed heresy. A very long piece in
looks at Alito, his seeming contempt for anyone unlike himself and voting rights - the word racist springs to mind - and desire to undo modernity. Having been raised Catholic like Alito, I have seen such types before and like the evangelicals he is the antithesis to a true Christian. Here are article highlights:
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.
