The Republican Party's man inside the Supreme Court

Joe Biden was about to become president, and the Alito household was in distress.

On May 16, the New York Times reported that, during the tense period between the January 6 insurrection and Biden’s inauguration, Justice Samuel Alito’s family displayed an upside-down American flag outside their home. An upside-down flag is a distress signal — a way that soldiers or ships at sea show that they are in extraordinary danger.

Taken in isolation, it’s hard to draw sweeping conclusions from this flag. The Times reports that many supporters of the “Stop the Steal” campaign — former President Donald Trump’s failed effort to overthrow the 2020 presidential election — embraced an inverted American flag to signal their belief that the United States was in grave danger. Alito claims that the flag was raised by his wife “in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

But this flag is hardly an isolated incident. On the bench, Alito is the Supreme Court’s most unrelenting Republican partisan — a reliable vote for whatever outcome is preferred by the GOP’s right wing, regardless of whether there is any legal support for that position. Alito isn’t simply a bad judge; he is the negation of law, frequently embracing claims that even intellectual leaders within the conservative movement find risible.

The morning before the Times published its flag scoop, for example, Alito published a dissenting opinion claiming that the Consumer Financial Protection Bureau, the brainchild of Democratic Sen. Elizabeth Warren, was unconstitutional. The opinion was so poorly reasoned that Justice Clarence Thomas, ordinarily an ally of far-right causes, mocked Alito’s opinion for “winding its way through English, Colonial, and early American history” without ever connecting that history to anything that’s actually in the Constitution.

Off the bench, meanwhile, Alito has a long history of making partisan statements that are just ambiguous enough that he can deny he was bemoaning a Republican defeat in a recent election. A little more than a week after Democratic President Barack Obama won his 2012 reelection race, Alito spoke to the conservative Federalist Society, where, quoting from one of his least favorite law professors, he warned that America is caught in a “moment of utmost sterility, darkest night, most extreme peril.”

Alito has long been the justice most skeptical of free speech arguments — he was the sole dissenter in two Obama-era decisions establishing that even extraordinarily offensive speech is protected by the First Amendment — but this skepticism evaporates the minute a Republican claims that they are being censored. Among other things, Alito voted to let Texas’s Republican legislature seize control over content moderation at sites like Twitter and YouTube, then tried to prohibit the Biden administration from asking those same sites to voluntarily remove content from anti-vaxxers and election deniers.

Alito frequently mocks his colleagues, even fellow Republicans, when they attribute government policies to anti-Black racism. After Justice Neil Gorsuch wrote in a 2020 opinion that the states of Louisiana and Oregon allowed non-unanimous juries to convict felony defendants more than a century ago to dilute the influence of Black jurors, Alito was livid, ranting in dissent: “To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism.”

Yet while Alito denies that racism might have motivated Louisiana’s Jim Crow lawmakers in the late 19th century, he brims with empathy for white plaintiffs who claim to be victims of racism. When a white firefighter alleged that he was denied a promotion because of his race, Alito was quick to tie this decision to the local mayor’s fear that he “would incur the wrath of … influential leaders of New Haven’s African-American community” if the city didn’t promote more non-white firefighters.

Empirical data shows that Alito is the most pro-prosecution justice on the Supreme Court, voting in favor of criminal defendants only 20 percent of the time. But he’s tripped over himself to protect one criminal defendant in particular: Donald Trump. An empirical analysis of the Court’s “standing” decisions — cases asking whether the federal courts have jurisdiction over a particular dispute — found that Alito rules in favor of conservative litigants 100 percent of the time, and against liberal litigants in every single case.

Though Alito, who turned 74 last month, is probably in the twilight of his career, his unapologetically partisan approach to judging could very well be the judiciary’s future, at least if Trump secures another term in the White House.

Today’s headlines are peppered with names like Aileen Cannon, the judge overseeing Trump’s stolen documents trial who has also behaved like a member of Trump’s defense team, or Matthew Kacsmaryk, the former Christian right litigator who’s been willing to rubber stamp virtually any request for a court order filed by a Republican. The United States Court of Appeals for the Fifth Circuit, the powerful federal court that oversees appeals out of Louisiana, Mississippi, and Texas, is now a bastion of Alito-like partisans who treat laws and precedents that undermine the GOP’s policy goals as mere inconveniences to be struck down or ignored.

These are the sorts of judicial appointees who would likely appeal to a second-term Trump, as the instigator of the January 6 insurrection looks to fill the bench with judges who will not interfere with his ambitions in the same way that many judges did in his first term.

Alito — a judge with no theory of the Constitution, and no insight into how judges should read ambiguous laws, beyond his driving belief that his team should always win — is the perfect fit, in other words, for what the Republican Party has become in the age of Trump.

It’s probably possible to go through any long-serving judge’s record and find opinions that aren’t especially persuasive. So, rather than rely on anecdotal evidence of Alito’s partisanship, let’s start with two empirical analyses of his behavior on the Supreme Court.

Political scientist Lee Epstein examined how often each current justice votes for a defendant’s position in criminal cases. Her data, which was first reported by NBC News, shows a fairly clear partisan divide. All three of the Court’s Democrats voted with criminal defendants in over half of the cases they heard, with former public defender Ketanji Brown Jackson favoring defendants in nearly 4 out of 5 cases. All six of the Court’s Republicans, meanwhile, vote with criminal defendants less than half the time.

But there is also a great deal of variation among the Republicans. Justice Neil Gorsuch, the most libertarian of the Court’s Republican appointees, voted with criminal defendants in 45 percent of cases. Alito, who once served as the top federal prosecutor in the state of New Jersey, is the most pro-prosecution justice, voting with criminal defendants only 20 percent of the time.

Yet Alito’s distrust for criminal defense lawyers seemed to evaporate the minute the leader of his political party became a criminal defendant. At oral arguments in Trump v. United States, the case asking whether Trump is immune from prosecution for his attempt to steal the 2020 election, Alito offered a dizzying argument for why his Court should give presidents broad immunity from criminal consequences.

If an incumbent president who “loses a very close, hotly contested election” knows that they could face prosecution, Alito claimed, “will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Alito’s supposed concern was that a losing candidate will not “leave office peacefully” if they could be prosecuted by the incoming administration.

The problem with this argument, of course, is that Trump is a case about a president who refused to leave office peacefully. Trump even incited an insurrection at the US Capitol after he lost his reelection bid.

Similarly, in Fischer v. United States, a case asking whether January 6 insurrectionists can be charged under a statute making it a crime to obstruct an official proceeding, Alito peppered Solicitor General Elizabeth Prelogar with concerns that, if the January 6 defendants can be convicted under this law, that could someday lead to overly aggressive prosecutions of political protesters. At one point, Alito even took the side of a hypothetical heckler who starts screaming in the middle of a Supreme Court argument and is later charged with obstructing the proceeding.

Alito can also set aside his pro-prosecution instincts in cases involving right-wing causes such as gun rights. At oral arguments in United States v. Rahimi, for example, Alito was one of the only justices who appeared open to a lower court’s ruling that people subject to domestic violence restraining orders have a Second Amendment right to own a gun. Indeed, many of Alito’s questions echoed so-called men’s rights advocates, who complain that judges unthinkingly issue these restraining orders without investigating the facts of a particular case.

Consider, as well, a case analysis by Adam Unikowsky, a Supreme Court litigator who previously clerked for conservative Justice Antonin Scalia.

In order to bring a federal lawsuit, a plaintiff must show that they were injured in some way by the defendant they wish to sue — a requirement known as “standing.” Unikowsky looked at 10 years’ worth of Supreme Court standing cases, first classifying each case as one where a “conservative” litigant brought a lawsuit, or as one where a “progressive” litigant filed suit. He then looked at how every current justice voted.

Nearly every justice sometimes voted against their political views — Thomas, for example, voted four times that a conservative litigant lacked standing and twice voted in favor of a progressive litigant. Alito, however, was the exception. In all six cases brought by a conservative, Alito voted for the suit to move forward. Meanwhile, in all 10 cases brought by a progressive, Alito voted to deny standing.

(Unikowsky also found that Justice Jackson, the Court’s newest member, has not yet crossed over in a standing case, but the data includes only one case, where she joined a 6–3 decision by Justice Brett Kavanaugh, a Trump appointee.)

Some of Alito’s standing opinions are genuinely embarrassing. The worst is his dissent in California v. Texas (2021), one of the four cases where Thomas voted to deny standing to a conservative litigant.

Texas was the third of three Supreme Court cases attempting to destroy the Affordable Care Act, President Obama’s signature legislative accomplishment. But even many high-profile Republicans found this lawsuit humiliating. The Wall Street Journal’s editorial board labeled this case the “Texas Obamacare Blunder.” Conservative policy wonk Yuval Levin wrote in the National Review that Texas “doesn’t even merit being called silly. It’s ridiculous.”

As originally drafted, Obamacare required most Americans to pay higher taxes if they did not obtain health insurance. In 2017, however, Congress eliminated this tax by zeroing it out. The Texas plaintiffs claimed that this zero-dollar tax was unconstitutional, and that the proper remedy was that the Affordable Care Act must be repealed in its entirety.

No one is allowed to bring a federal lawsuit unless they can show that they’ve been injured in some way. A zero-dollar tax obviously injures no one, because it doesn’t require anyone to pay anything. And so seven justices concluded that the Texas lawsuit must be tossed out.

Alito dissented. While it is difficult to summarize his convoluted reasoning concisely, he essentially argued that, even if the zero-dollar tax did not injure these plaintiffs, they were injured by various other provisions of Obamacare and thus had standing.

This is simply not how standing works — a litigant cannot manufacture standing to challenge one provision of federal law by claiming they are injured by another, completely different provision of federal law. As Jonathan Adler, one of the architects of a different Supreme Court suit attacking Obamacare, wrote of Alito’s opinion, “standing simply cannot work the way that Justice Alito wants it to” because, if it did, “it would become child’s play to challenge every provision of every major federal law so long as some constitutional infirmity could be located somewhere within the statute’s text.”

Alito’s Texas opinion, in other words, would allow virtually anyone to challenge any major federal law, eviscerating the requirement that someone must actually be injured by a law before they can file a federal lawsuit against it. Needless to say, Alito does not take such a blasé attitude toward standing when left-leaning litigants appear in his Court. But, when handed a lawsuit that could sabotage Obama’s legacy, Alito was willing to waive one of the most well-established checks on judicial power so that he could invalidate the keystone of that legacy.

In a 2005 speech explaining why he opposed Chief Justice John Roberts’s confirmation to the Supreme Court, then-Sen. Obama explained how he thinks judges actually decide difficult cases. While “95 percent” of cases can be resolved solely by looking at neutral legal principles, Obama said, “adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon” in the especially challenging cases that come before the Supreme Court.

In those hardest cases, Obama argued, “that last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

One might think that empathy, which means the capacity to understand the thoughts, feelings, and experiences of another person, would be an essential quality in anyone tasked with judging other people. But Republicans later latched onto Obama’s statement as evidence that his judicial appointees would decide cases based on feelings and vibes, instead of law. As Sen. Chuck Grassley (R-IA) said in 2016, “the President’s idea of what’s appropriate for justices to consider is totally at odds with our constitutional system. We are a government of laws and not a government of judges.”

Alito’s jurisprudence, however, displays neither the universal empathy touted by Obama nor the kind of mechanical application of legal principles imagined by Grassley. Instead, Alito engages in selective empathy, often mocking the concerns of left-leaning litigants while simultaneously being extraordinarily protective of conservatives. And this selective empathy is most obvious in Alito’s decisions involving race.

Alito lashes out at his colleagues when they accuse white lawmakers — even, in one case, white lawmakers in the Jim Crow South — of racism. Yet he showed tremendous empathy for the firefighter who claimed to be a victim of anti-white discrimination.

Indeed, one of the unifying themes in Alito’s race cases is his desire to write a presumption of white racial innocence into the law — and especially into American voting rights law.

Consider, for example, Alito’s majority opinion in Abbott v. Perez (2018), where the Court’s Republican majority rejected a claim that Texas’s GOP-friendly congressional maps were an illegal racial gerrymander.

In 2011, the Texas legislature drew maps that never took effect, and that were eventually declared an illegal gerrymander by a federal court. Because of the legal challenges to these maps, the state legislature drew alternative maps in 2012 that were supposed to be used only in that year’s election. Though much of these interim 2012 maps closely resembled the illegal 2011 maps, a court allowed Texas to use them in the 2012 election because otherwise the state would not have been able to conduct the election at all.

Then, in 2013, the Texas legislature passed a new law converting the 2012 stopgap maps into permanent maps, meaning that they would be used until the next census in 2020. The state legislature did so, moreover, despite the fact that many of the districts in these new maps were still being challenged as unlawful racial gerrymanders.

Alito’s opinion in Perez, however, cut most of these challenges off. He reasoned that “the 2013 Legislature’s intent was legitimate” because the decision to convert the interim maps into permanent maps was not driven by racism. Rather, it was driven by a desire to “bring the litigation about the State’s districting plans to an end as expeditiously as possible.”

Alito’s argument, in other words, was that the 2013 maps were permissible because they were enacted to shut down a lawsuit challenging a racial gerrymander. It’s as if the school districts that were declared unlawfully segregated in Brown v. Board of Education (1954) had simply passed a new law re-creating the same racially segregated schools that existed before Brown was decided, and then argued that the new law should be upheld because it was enacted to end a lawsuit challenging segregation.

Consider, as well, Alito’s majority opinion in Brnovich v. DNC (2021), a case asking whether two Arizona election laws that allegedly had a disproportionate negative impact on nonwhite voters violated a 1982 amendment to the Voting Rights Act.

In rejecting this claim, Alito simply made up a bunch of new limits on the Voting Rights Act that appear nowhere in the law’s text. He declared, for example, that state laws which purport to fight voter fraud are presumptively legal. He also applied a strong presumption that any voting restriction that was commonplace in 1982 does not violate the 1982 amendment to the Voting Rights Act.

This later presumption is completely ridiculous. The only reason why Congress enacts any law is because it wants to change the status quo. If Congress enacted a new voting rights law in 1982, that means that Congress was unsatisfied with the state of voting rights in 1982 and wanted to change it — not to preserve restrictions that were commonplace at the time.

As Justice Elena Kagan wrote in her Brnovich dissent, Alito’s opinion “mostly inhabits a law-free zone.”

Earlier this month, Alito delivered the commencement address at Franciscan University, a Catholic school in Ohio. Much of his speech echoed the sort of anti-“cancel culture” rhetoric that can be heard on any given episode of Sean Hannity’s Fox News show.

“Troubled waters are slamming against some of our most fundamental principles,” Alito told the graduates, echoing similar rhetoric that he used to describe the reelection of President Obama in 2012. “Support for freedom of speech,” Alito claimed, “is declining dangerously, especially where it should find broadest and widest acceptance.”

Alito’s concern about free speech is a little jarring, because he’s long been the justice least likely to back free speech claims by civil rights plaintiffs. In 2010 and 2011, for example, Alito was the sole dissenter in two important free speech cases reiterating the Court’s well-established view that speech is protected by the First Amendment even if it is likely to offend most people.

The justice’s more recent free speech decisions, meanwhile, largely turn on whether the party that wishes to shape public discourse is a Democrat or a Republican.

In 2021, for example, Texas’s Republican legislature enacted a law that effectively seizes control over all content moderation at major social media platforms like YouTube, Twitter, or Facebook. The law was an explicit effort to force these platforms to host right-wing content that they would prefer not to publish. “It is now law that conservative viewpoints in Texas cannot be banned on social media,” Texas Gov. Greg Abbott (R) said when he signed the law.

The law is also comically unconstitutional. The Court held in Rumsfeld v. Forum for Academic and Institutional Rights (2006), that “freedom of speech prohibits the government from telling people what they must say.” And it held in Miami Herald v. Tornillo (1974), a publication’s choice to publish or not publish certain content is subject only to the outlet’s “editorial control and judgment,” and “it has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press.”

Yet, when a majority of his colleagues voted to temporarily block this Texas law, Alito dissented, suggesting that Texas’s Republican lawmakers should have more leeway to address “the power of dominant social media corporations to shape public discussion of the important issues of the day.”

Not long after Alito wrote this dissent, however, the Court heard another case, known as Murthy v. Missouri, which involved an unusual order handed down by the far-right United States Court of Appeals for the Fifth Circuit. That order effectively forbade the Biden administration from asking social media companies to voluntarily remove harmful content, such as videos seeking to recruit terrorists or tweets that promote false and potentially dangerous medical advice.

Once again, a majority of Alito’s colleagues voted to block this lower court order. Once again, Alito dissented.

It should be obvious that the First Amendment cannot simultaneously empower a Republican government to force media outlets to change their editorial policies, while also forbidding a Democratic government from asking a media outlet to change what it publishes — unless, of course, you believe that there is one First Amendment for Democrats and a different one for Republicans.

Later in his address to Francisan’s graduating class, Alito had a revealing line about why he believes that freedom of religion is threatened in the United States. “Religious liberty is also threatened,” Alito claimed. Then he warned the graduates that “when you venture out into the world, you may well find yourself in a job, or community or a social setting when you will be pressured to endorse ideas you don’t believe, or to abandon core beliefs.”

This warning blurs an important line between the kind of pressure that can plausibly violate “religious liberty,” and the kind of pressure that is just an ordinary part of living in a pluralistic society.

Alito is correct that, under some circumstances, a worker who is pressured because of their religious beliefs at work may have a viable religious liberty claim. That’s because federal law requires employers to accommodate their employee’s religious beliefs unless doing so would impose an “undue hardship on the conduct of the employer’s business.” So, for example, if a worker’s boss pressured a conservative Catholic employee to sign a statement endorsing the right to an abortion, such pressure would likely violate this worker’s civil rights.

But there is no right to be free from pressure, or even social ostracization, because people in your community or social circles find your religious beliefs abhorrent. If freedom of religion means anything, it must include both the right of a conservative evangelical to believe that gay people are sinful, and the right of everyone else to turn up their nose in disgust at anyone who expresses such a viewpoint.

Yet Alito hasn’t simply argued that conservative Christians have a right not to be shunned for their views, he’s argued that the rights of gay Americans must be diminished in order to protect the feelings of people who oppose those rights. Hence Alito’s argument that Obergefell v. Hodges (2015), the Court’s landmark marriage equality decision, was wrongly decided because “it will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”

Thus, in Samuel Alito’s America, Republicans have the power to control media, while Democrats can’t even ask media outlets to change what they publish. Meanwhile, the rights of historically marginalized groups must be diminished to prevent anyone from speaking ill of those who would marginalize them.

A 2023 essay by attorney Adam White tries to find a larger intellectual project behind Alito’s jurisprudence, beyond an overarching command that the Republican Party should always win. Alito, White claims, is a “Burkean conservative,” a reference to the 18th-century English conservative Edmund Burke, who is wary of the “dangers of concentrating too much power [in] the hands of elites or elite institutions.”

White argues that Alito seeks to preserve traditional ways of organizing society, and to diminish the power of institutions that can cause the United States to depart from such traditions. As White writes, “when government action — especially the swift and sweeping work of agencies, executives, and courts, rather than legislatures — threatens longstanding traditions or the institutions and communities that keep and transmit them, Justice Alito’s instinct has been to begin with a presumption in favor of defending tradition.”

Alito, for what it’s worth, appears to think of himself very much as White describes him. In his Franciscan speech, for example, Alito argued that the Constitution “guards against improvident change,” both because the document itself is almost impossible to amend, and because it makes it very difficult for the federal government to make law. The framers of the Constitution, Alito claims, “knew that times would inevitably come when people would be tempted to make hurried and unwise changes,” and they believed that the “country’s well-being depended on the ability to resist these temptations.”

Thus, at Franciscan, Alito presented himself as that most conservative of guardians — a judge who “stands athwart history, yelling Stop.”

But if Alito imagines a country that is slow to change its laws, and one where Congress — and not swifter-moving institutions like the courts or executive branch agencies — are the drivers of policy, this vision appears to wax and wane depending on who is in the White House, and whether a new policy benefits liberals or conservatives.

Consider two cases, both of which involve court decisions that sought to shape US policy.

In Department of Homeland Security v. Regents of the University of California (2020), a majority of Alito’s colleagues concluded that the Trump administration failed to complete the appropriate paperwork when it tried to end the Deferred Action for Childhood Arrivals (DACA) program. DACA, which had been in effect for eight years when the Court ruled, allows hundreds of thousands of immigrants who came to the United States as children to live and work in this country.

When a Republican administration sought to end a program created by Democrats, Alito behaved exactly as White describes him — warning about concentrating too much power in the judiciary. Shortly after Trump officials tried to end DACA, Alito wrote in dissent, “one of the nearly 700 federal district court judges blocked this rescission, and since then, this issue has been mired in litigation.” He complained that “the federal judiciary” had effectively prevented Trump from implementing one of his policy goals “during an entire presidential term.”

Three years later, however, one of the nearly 700 federal district court judges blocked a different federal policy. Kacsmaryk, the crusader for the religious right that Trump put on the bench, attempted to ban the abortion drug mifepristone nearly a quarter century after the FDA authorized doctors to prescribe it in the United States. Even on Alito’s very conservative, anti-abortion Court, he was one of only two justices who went along with this attempt to remove a widely available medication from the market by judicial decree.

Or consider Alito’s vote in Trump v. Hawaii (2018), the challenge to Trump’s decision to ban citizens of several Muslim-majority nations from entering the United States. Trump did so, moreover, after bragging on the campaign trail about his plan to enact an unconstitutional ban on Muslims entering the United States if elected president.

Before Trump took office, Alito was often the Court’s most outspoken proponent of an expansive concept of religious freedom, especially in cases involving conservative Christians. But Alito abandoned this concern for religious liberty, as well as any concerns about the executive branch setting policy, in the Hawaii case. Instead, Alito joined an opinion claiming that federal law “exudes deference” to President Trump.

Under President Biden, by contrast, Alito’s been one of the Court’s strongest proponents of the so-called major questions doctrine, a judicially created doctrine that’s been used almost exclusively to strike down policies created by Democratic administrations, and that has no basis in either the Constitution’s text or in any statute. Indeed, Alito’s even wielded this doctrine to strike down Biden administration policies that were unambiguously authorized by federal law.

So let’s dispel this fiction that Alito takes a principled, Burkean approach to the law and the Constitution. Alito does often use the sort of rhetoric that is associated with traditionalist forms of conservatism, but that rhetoric only drives his actual decisions when it leads to the outcome he prefers.

Samuel Alito is one of the worst judges of his generation. He rejects the very basic idea that courts must decide cases based on the law, and not based on their partisan views. He routinely embarrasses himself in oral arguments, and in his published opinions, with legal reasoning that no sensible lawyer can take seriously. And he even tries to distort public debate and silence critics.

But most of all, Alito is one of the most uninteresting thinkers in the country. Here he is, in one of the most powerful and intellectually rigorous jobs on the planet — a philosopher king, presiding over the mightiest nation that has ever existed — and his only big idea is “Republicans should win.”