Samuel Alito is Trying to Make Reasonable Critics Seem Radical

Samuel Alito, like many contemporary conservatives, more or less alternates between two public states of being. There’s the sneering defiance, as displayed over the summer during a Rome speech in which he mocked foreign leaders who had criticized the Supreme Court’s 6-3 decision to overturn Roe v. Wade. And then there’s the bleating indignation, of the kind he indulged in Tuesday during an event at the Heritage Foundation. Addressing questions of the court’s legitimacy that have swirled around in the wake of its Dobbs ruling, the right-wing justice complained about the apparently unfair treatment he and his conservative colleagues have faced — even in the typically-chummy halls of the Marble Palace. “I don’t think anybody in a position of authority should make that claim lightly,” Alito said, warning that criticism of the court’s legitimacy “crosses an important line.”

“That’s not just ordinary criticism,” Alito continued. “That’s something very different.”

He didn’t mention any names specifically, but he may have been referring to any number of high-profile critics, including President Joe Biden, who lamented this month that the high court had been acting as “more of an advocacy group” than an even-handed administer of justice; or to fellow Justice Elena Kagan, who warned in July that the blatant partisanship her conservative colleagues displayed in recent decisions had threatened the integrity of the court: “If, over time, the court loses all connection with the public and the public sentiment, that’s a dangerous thing for democracy,” Kagan said at a conference over the summer — which seems to have struck a particular cord with with Alito. “To say that the court is exhibiting a lack of integrity is something quite different,” the right-wing justice said Tuesday. “That goes to character, not to a disagreement with the result or the reasoning. It goes to character.”

It is, of course, entirely fair to question the character of Alito and the other justices who helped obliterate federal abortion protections in June; he, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett had all implied or directly stated during their confirmation hearings that they considered Roe settled law and would respect it. “I recognize there is a right to privacy,” as Alito told Ted Kennedy in 2005, according to one of the late Democratic senator’s diary entries published Tuesday by the New York Times. “I think it’s settled,” Alito added, noting that he is a “believer in precedents.”

Apparently not. Seventeen years later, he’d lead the charge to overturn five decades of precedent. And his colleague, the crusading far-right justice Clarence Thomas, would put a host of other seemingly settled privacy rights on notice in his concurring opinion on Dobbs. Indeed, while Alito and the rest merely opened the door to strike down other federal protections, Thomas explicitly cited several privacy rights decisions he’d like to see reconsidered — though he notably left out the one that makes his marriage to the conservative activist and election denier Ginni Thomas legal in all 50 states. This kind of cherry-picking — both in the conservatives’ legal reasoning and the cases to which it’s applied — torpedoes all of their self-righteous posturing. This is not about principle or originalism or any of the other pretenses they’ve conjured to rationalize their decisions; it’s about enforcing a Republican policy agenda, precisely as their critics have charged.

Alito on Tuesday cautioned that some of those criticisms have gone too far, specifically suggesting that the leak of his Dobbs draft had made he and his colleagues “targets for assassination.” “It gave people a rational reason to think they could prevent [that ruling] from happening by killing one of us,” he said at the Heritage Foundation event. Certainly, political violence is inappropriate. But the conflation of violence with questions about the legitimacy of an increasingly extreme and unaccountable institution is dishonest. It’s meant to silence his detractors and to make reasonable people seem radical. Alito and his colleagues don’t deserve threats. But they also don’t deserve the deference they seem to think we owe them.