Samuel Alito was not George W. Bush’s first choice for the Supreme Court seat created by the retirement of Sandra Day O’Connor, a pro-choice justice. White House Counsel Harriet Miers was.
Miers had a thin resume for the Supreme Court. She hadn’t written much of consequence; she was not a graduate of an Ivy League law school, like most of the justices; she had never been a judge. The opposition to Miers came from the right wing of the Republican party, which had a pro-life litmus test for Supreme Court justices. They considered her an unreliable choice to help overturn Roe v. Wade.
In the face of formidable opposition, Miers asked that her name be withdrawn, and Bush turned to Samuel Alito, a conservative Catholic who would satisfy anyone’s definition of a sure vote to overrule Roe.
Alito faced a tough time getting confirmed. He was an obscure judge of the Third Circuit Court of Appeals. Democrats sensed what his views were on abortion, and were only mollified when Judge Edward Becker, a colleague of Alito on the Third Circuit, testified on his behalf before the Judiciary Committee that Alito was not a zealot, but a reasonable judge who would follow the law. The Republican Senate confirmed Alito by a vote of 58-42.
Becker was wrong about Alito. He was a partisan, a radical and an extremist conservative.
Alito cannot be accused of the even-handed application of the law. He has been described as the court’s “most reliable partisan.” The evidence concerns his rulings on the doctrine of standing — whether a party is entitled to bring their claims to court. “An empirical analysis of the Court’s ‘standing’ decisions,” wrote Ian Milhiser in Vox, “found that Alito rules in favor of conservative litigants 100 percent of the time, and against liberal litigants in every single case.”
No wonder he voted with the majority in Citizen’s United, opening the floodgates to unlimited campaign contributions from Super PACS, and enabling Donald Trump to solicit million-dollar contributions from corporate captains of industry.
No wonder he mused at oral argument that unless we give former presidents immunity from criminal prosecution, they will be incentivized to remain in office and block the peaceful transfer of power.
No wonder he found no basis in the 14th Amendment to disqualify Trump from the ballot, despite the finding that Trump had engaged in an insurrection.
No wonder Alito found his Holy Grail writing the opinion in Dobbs v. Jackson Women’s Health Organization, which overturned the half-century of jurisprudence spawned by the landmark decision of Roe v. Wade, which had found a constitutional right to abortion.
The decision in Roe, lest one forget, was concurred in by five Republican-appointed justices. What was the legal basis for Alito’s vote to overturn such redoubtable authority other than politics, his partisan belief that women did not have the autonomous right to control their own bodies?
To support his Dobbs position, Alito dredged up the writings of Matthew Hale, who served as Lord Chief Justice of England in the 17th century. Hale was known one of the greatest misogynists ever to ascend to the bench. For a Supreme Court justice to cite a misogynist who died over 400 years ago in support of an opinion riding roughshod over the established constitutional rights of American women demeans all scholarship.
But this is not the end of Alito’s problems.
He took an unreported fishing trip to Alaska in 2008 with billionaire Paul Singer, who graciously flew the justice in his private plane. Singer had major litigation before the Supreme Court, which he later won, with Alito casting a concurring vote, handing Singer a $2.4 billion victory. Alito stated that he did not need to recuse himself from any cases involving Singer because he had no knowledge of Singer’s connection to the cases and believed the trips and accommodations were permissible under judicial ethics guidelines. Tell me another one.
Alito’s propensity for prevarication extended to his explanations for the upside-down American flag flying in front of his Virginia home. He said it was in response to a neighbor who had hoisted a “F— Trump” flag. He blamed his wife for the flag, flown by the Proud Boys on Jan. 6, asserting he had no control over her — thus taking the incongruous position that while the state can control a woman’s right to terminate her pregnancy, a sitting justice can’t control his wife’s right to make a partisan statement with Capitol insurrection cases pending before the court.
Of course, the explanation was incorrect, since it appears that the flag was up for two weeks before the dispute with the neighbor arose. And then there was the other flag. The Alitos have a vacation home in New Jersey where they flew an “Appeal to Heaven” flag identified with Trump. There was no dispute with a neighbor in N.J.
Now comes the topper. A self-described documentary filmmaker named Lauren Windsor approached Alito at a reception. Posing as a conservative activist and with tape recorder running, she told Alito she was worried about polarization in the country. Alito spoke with surprising candor: “I mean, there can be a way of working — a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised.”
At another point, Windsor tells the justice, “I don’t know that we can negotiate with the left in the way that, like, needs to happen for the polarization to end. I think that it’s a matter of, like, winning.”
Alito responds. “On one side or the other — one side or the other is going to win. I don’t know. I mean, there can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So, it’s not like you are going to split the difference.”
The scandal cries out for Alito’s forced recusal from Trump related cases. But because the Supreme Court lacks an enforceable ethics code, there is no one who can compel Alito to do anything.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.