Conservatives on the Supreme Court have made Justice Samuel Alito, seen here in 2007, their go-to man, and he has spent his time on the bench firmly influencing the court’s rulings.
Getty Images/Nancy Ostertag Only a small number of justices have their names associated with a single extremely famous—or infamous—decision in the history of the U.S. Supreme Court. Chief Justice Roger Taney for the infamous Dred Scott decision, which stated that no African American, whether enslaved or free, could be a citizen of the United States; Chief Justice Earl Warren for his 1954 decision declaring segregation in public schools unconstitutional. Chief Justice John Marshall for his 1803 decision stating that the courts have the power to strike down laws that violate the constitution. And now, Samuel Alito’s name is forever associated with the court’s decision to reverse fifty years’ worth of rulings stating that women have a right to abortion.
Unlike Marshall, Taney, and Warren, Alito is not the chief justice and may not be well-known to the broader public. However, he has been an important player on the court, frequently leading the conservative movement in support of expanded religious freedom, against LGBTQ rights, for expanded voting rights, against labor unions, and more.
The right’s workhorse
In fact, after taking over for the more conservative Justice Sandra Day O’Connor in 2006, he quickly established himself as the right’s workhorse.
For instance, he authored the court’s 5-to-4 ruling on contraception, which stated that closely owned, for-profit organizations might refuse to comply with a federal statute requiring employer insurance policies to cover contraception for their employees on the basis of their religious beliefs.
In 2014, he announced his position from the bench, saying, “This court has indicated time and time again that we have no business assessing whether any serious religious belief is valid or rational and it would be dangerous if we started down that route.”
He authored the court’s 2010 ruling invalidating state laws prohibiting the possession of handguns within the home, in which he stated that the “right to keep and bear arms is fundamental in our understanding of ordered liberty and is firmly founded in our country’s traditions.”
He authored the court’s 2007 ruling holding that individuals subjected to racial or sexual discrimination at work could only be awarded damages for the period beginning 180 days after they filed their lawsuit, not from the time the discrimination first occurred. After the court’s swift censure, Congress amended the anti-discrimination law to make it explicit that damages and back pay must be given starting on the day the discrimination starts.
In instances involving the death penalty, Alito has expressed impatience with attempts to curtail the practice, stating in one instance that any death row convict who claims the state’s execution technique is cruel and unusual punishment must immediately come up with a substitute.
He frequently sides with state rules that make voting more challenging in issues involving voting rights. “Mere annoyance cannot be adequate to demonstrate a violation,” he stated in an opinion from 2021.
LAW Unions for public employees were the target of one unique Alito campaign. He specifically targeted a forty-year-old Supreme Court ruling that affirmed unions’ rights to charge non-union members dues, provided that the money was solely used for collective bargaining and other non-political activities that benefited both union and non-union workers equally. The goal was to stop non-union employees from “free-riding” on the labor union. But in 2018, Alito ultimately succeeded in overturning the precedent after working on it for more than a decade and even repeatedly inviting objections. He asserted that the freedom of speech guaranteed by the First Amendment extends to the choice not to speak out in favor of or against a union. Non-union members are not at all freeloaders, he claimed. They are forced passengers.
LAW Roe’s ruling was overturned
Few topics seem to aggravate Alito as much as those that, accidentally or not, touch religion or the current cultural war. There is a “increasing antagonism to religion, or at least the traditional religious views that are in opposition to the new moral code that is ascendant in some areas,” as he stated in a speech in July.
His analysis of abortion and constitutional interpretation led to the Dobbs decision, which reversed Roe. Since the court conveniently stopped the long-standing practice of making these announcements at the height of the pandemic and thereafter, prompting an escalating wave of criticism, there is no audio of his opinion statement.
However, as Alito argued in his written abortion opinion, the Roe decision by the Supreme Court and the subsequent rulings had to be overturned because Roe was “egregiously wrong,” the supporting evidence was “exceptionally weak,” and abortion was not common at the time of the country’s founding or after. According to Alito, “zero” evidence existed to support such a right.
The ruling was praised as “excellent” and a prime example of Alito’s legal philosophy by many on the political right. One former Alito clerk claimed, “He is not partisan.” He simply holds that rules are rules, independent of politics, and that the law is built on rules.
He is capable of success.
Akhil Amar, a liberal Yale law professor, also stands up for Alito, arguing that the court wins by abiding by the rules and not straying from them. “He is silent. He is capable of success “Amar states.
Conservatives among them, though, disagree. One of them is Sarah Isgur, a former employee of the Trump Justice Department and a prominent figure in the Republican Federalist Society. She claims that the Alito opinion fails the crucial persuasion test since it exclusively appeals to his supporters. “You can get the idea there are permanent victors and losers when you have a court that is 6-3 on so many different types of viewpoints,” she says. And the court needs to write more eloquently when it addresses those who might believe they are losers forever.
She continues, “At this point, the question is not whether Roe was correctly decided, but rather, do you change a precedent that has been in place for 50 years—the case that is arguably most well-known to Americans across the nation, and it’s not even close.
Michael Dorf, a professor of constitutional law at Cornell, is more direct, labeling the ruling “dishonest” because it “so selectively cites history” to support one particular viewpoint.
Dorf asserts that Justice Alito fails to take a more objective approach to the case as required by law. “One wonders how so many previous justices, the majority of whom were selected by Republican presidents, could have discovered and then upheld the right to abortion in the constitution. The opinion’s one-sided progression exhibits a certain level of hubris.”
Isgur adds that Alito’s assurances ring hollow when he claims at the conclusion of his opinion that the Dobbs case shouldn’t call into question other precedents based on the same logic as Roe, such as opinions guaranteeing the right to access contraception or opinions supporting same-sex marriage, for example.
That may be, but Alito is a member of a court that is exhibiting “a persistent freedom from doubt on legal matters,” as Chief Justice John Roberts noted in the Dobbs case.