In June, the U.S. Supreme Court overturned Roe v. Wade, at last bringing the conservative legal movement’s half-century fight to dispose of the constitutional right to abortion care to its long-awaited end. Four months later, Justice Samuel Alito and his colleagues have settled on their next big project: getting publicly upset that in the wake of this decision, the unwashed masses are being insufficiently respectful of the justices who made it.
Appearing this week at an event sponsored by (who else?) the Heritage Foundation, Alito, who wrote the majority opinion in Dobbs v. Jackson Women’s Health Organization, claimed to have no problem with vociferous public disagreement with Dobbs or with any of the Court’s rulings. “Everybody is free to criticize our reasoning, and to do it in strong terms,” he said. But, he continued, questioning the legitimacy of the Court is beyond the pale, and has no place in the proverbial discourse.
“To say that the Court is exhibiting a lack of integrity is something quite different,” Alito said. “That goes to character. It goes not to a disagreement with the result or the reasoning. It goes to character.”
I’ll start by noting that the putative distinction here, which Alito has grown fond of parroting as the Court’s approval rating continues its nose dive, is meaningless to anyone without a terminal case of Law Professor Brain. Sure, sometimes “criticism” of legal opinions takes the form of spirited disagreements about the meaning of a given statute or the persuasiveness of a given conclusion. But my criticism of “reasoning” that I find to be disingenuous, shallow, and offered in transparently bad faith necessarily implicates the character of the justices who signed on to it. Sam Alito’s disingenuous, shallow, and transparently bad-faith decisions that affect the lives of millions of people—Dobbs or otherwise—are not entitled to obedient reverence just because he frames them as objective analysis with Latin phrases sprinkled in at the appropriate junctures.
Part of the reason the reaction to Dobbs has been so negative is that the justices who comprised the majority supplied plenty of fodder to their critics. By this, I mean that when asked about Roe as aspiring justices, they either lied through their teeth about it or tied themselves into rhetorical knots in order to avoid telling the truth. During his Senate confirmation hearings in 2005, Alito called Roe an “important precedent,” and allegedly told Senator Ted Kennedy that he considered it “settled.” When asked about a 1985 application for a promotion in the Reagan administration in which Alito touted his work on cases arguing “that the Constitution does not protect a right to abortion,” his responses were, to put it gently, unconvincing. His perspective as a judge was different from his perspective as an advocate, he said, and he pledged to consider any challenge to Roe with an “open mind.”
Other conservative nominees followed this same playbook, performing the role of the sober, thoughtful, agenda-less jurist. In 2017, Neil Gorsuch called Roe “the law of the land”; a year later, Brett Kavanaugh said that it was “entitled the respect under principles of stare decisis.” Maine Senator and noted hapless rube Susan Collins claimed that Kavanaugh, too, privately assured her that he viewed Roe as “settled law”—a euphemism for precedent that judges, whatever their personal disagreements with the precedent may be, are ostensibly duty-bound not to disturb.
Perhaps the most incredible statement about Roe came from Clarence Thomas, the Court’s only current member more invested than Alito in excising from the Constitution anything that does not appear verbatim in the 2020 Republican Party platform. During his confirmation hearings in 1991, Thomas told senators that he had “never debated the contents” of Roe, and had no “personal opinion” about its correctness. Among elite conservative lawyers like Clarence Thomas, this is roughly the equivalent of an eighth-grade boy claiming to have never wondered for a single moment what sex might be like.
In my view, none of these mealy-mouthed statements should have fooled anyone into believing that Roe was safe, because each of these mealy-mouthed statements carefully avoids making a promise while sounding reassuring to people eager to hear one. The members of the Court’s reactionary wing have spent their professional lives working towards Roe’s demise, and even if a justice were to promise that Roe was safe, they would do so knowing that there would be no consequences for breaking it later. These were cynical ploys designed to satisfy the bare minimum number of senators necessary to win confirmation, and they had their intended effect.
My point, instead, is simply that in light of this history, “Sam Alito is a smarmy dunce” or “Clarence Thomas is an embarrassing hack” or “Brett Kavanaugh is a partisan stooge who happens to wear robes to work” are all reasonable conclusions for people to draw from the available evidence. If Alito or Thomas or Kavanaugh think their subjects should be a little quicker to prostrate themselves with gratitude whenever they encounter the justices in public, they have only themselves to blame.
The implicit premise of Alito’s remarks is that Supreme Court justices should be immune from a certain type of criticism because they are Supreme Court justices. This is cowardly horseshit—a feeble attempt to use the last shreds of the Court’s credibility as a shield against what little accountability life-tenured justices ever might have to face.
It is absolutely necessary to question the “character” and “integrity” of judges, for the same reasons that it is necessary to question the character and integrity of anyone who wields political power in ways that hurt others. If you are going to make a career out of weaponizing the law to take civil rights away from people, you should not be surprised when few of them are approaching you on the street, grasping your hand, and thanking you profusely for your service.
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