Defensive Justice: Inside the mind of Supreme Court Justice Samuel Alito

May 24, 2011 | By | 4 Replies More

On Monday, May 16, 2011, Associate Justice of the United States Supreme Court Samuel A. Alito spoke at a function sponsored by the Bar Association of Metropolitan St. Louis. I attended because I was curious about his thought process; what was going on in his mind? I had no idea what Justice Alito was going to discuss until he began to speak. I recorded his speech on a small recorder and I took some notes.

Alito is part of a Supreme Court majority that has repeatedly written opinions that have wrested power from average citizens at the expense of powerful corporations. Yet Justice Alito began his talk by proudly reciting an inscription on the walls of the United States Supreme Court: “Equal Access to the Law.” That’s a strange line to recite by a judge who has voted to bar ordinary citizens from having meaningful access to courthouses (see AT&T v Concepcion) and barred them from having meaning access to democracy itself by unleashing an ocean of money into the electoral process (see Citizens United and see here).

Image: Creative Commons

Alito titled his talk “The Top 10 Things You Might Not Know about the United States Supreme Court.” Because Alito is often touted as an “intellectual,” I assumed that the talk might be intellectually challenging, but it was a self-absorbed and disingenuous talk delivered in a humorless tone. Alito’s talk was also highly defensive, as described below.  His talk was especially disappointing in light of Alito’s claim that he has given this same talk to other audiences on many other occasions. That would presumably would have given him the opportunity to hone some inspirational messages into his talk, but I felt no inspiration.  Feel free to disagree with me after listening to Alito’s entire speech here. Without further ado, here are Samuel Alito’s “top ten things” along with my reactions to these “things.”

Topic one: “Most cases are not about the Constitution.”

I never assumed otherwise, and I suspect that most audience members (all most all of them practicing attorneys) never assumed otherwise. It was curious is that Alito mentioned Brown versus Board of Education as one of the great cases coming out of the United States Supreme Court. Brown was a case in which the court was looking out for the little guy, something the current court has not shown much interest in doing. Therefore, one might wonder how the majority on this court would have reacted in such a case had this majority been sitting on the bench back in 1954. If this sounds harsh, give me one reason to think otherwise. Brown pitted the Court against legislators; it was inconvenient decision for those in power. It was a decision driven by a desire for “social justice,” an alien concept for the current court.

Topic two: “Most cases are governed by precedent.”

Anyone practicing law for more than a few years would be struck by the naïveté of this assertion. All lawyers are trained to cleverly argue that “precedent” compels a decision in their own clients’ favor. This claim that “The law made me do it” is also a common excuse uttered by judges who are uncomfortable sitting on the hot seat they created. The black and white jurisprudence Alito perceives practices is a quaint and even dangerous mindset. Pro-business conservatives like Mr. Alito need to pull their heads out of the Originalist sand and start taking ownership of their decisions. The Constitution is a living breathing document—at least that is what the Brown Court held—or wasn’t Brown decided properly? Where is the provision of the Constitution that requires that it be cherry-picked by those claiming to be Originalists? Where in the Constitution does it suggest that it shouldn’t be interpreted with compassion for those under the thumb of powerful businesses? The current conservative majority needs to quit pretending that they are not using substantial discretion to decide the flavor of political power they are serving up from the bench.

Image by Erich Vieth (creative commons photo of Samuel Alito and Dreamstime image of gears, with permission)

Topic three: [A somewhat arcane discussion of the Slaughterhouse cases].

This discussion segued to Alito’s assertion that four of the justices on the United States Supreme Court previously worked as professors. I guess I’m supposed to feel better that the pro-business opinions gushing out of this court were written by “the most academic court ever.”

Topic Four:  “Oral argument is not the main job of the court… It is relatively unimportant.”

On previous occasions, I’ve heard other appellate judges express this same view. There seems to be some truth to it, given that the written briefs are highly detailed, and most of an appellate court’s information about a case comes from these written briefs. Nonetheless, oral argument is the last good chance to get the case right by cross-examining the lawyers who are representing the clients before the court. Alito presented some statistics as part of this topic. The average oral argument goes for “one hour.” In contrast, the justices spend many hours reading briefs and studying, and some of these briefs are more than 500 pages in length. He claimed that the average oral argument “involves 120 questions.” I find this claim to be untenable, since it amounts to a new question every 30 seconds, which would not ever allow any meaningful time for either lawyer to present his or her case (Listen to arguments at Scotusblog and you’ll hear actual arguments—I seriously doubt that any of them involve anything close to a distinct question every 30 seconds;  I don’t know who was counting the questions here, but they do exaggerate) I’m not denying that many questions are asked, because the Justices DO ask many questions, but this suggests that oral argument actually is important, contrary to Alito’s claim.

Topic five:  Each of the Justices does his or her own work.

Interesting claim, but who is claiming otherwise? Well, perhaps some lawyers might wonder how much work is actually done by the Justices given that they each have several law clerk who graduated from prestigious law schools. Interesting that Alito is asserting a defense where there is no accusation. Or is there? This brings to mind that Mr. Alito opened his talk with a conspicuous assurance that he is working hard even when the Court is not in session. It would seem that the best way to prove that one is working hard as a Justice is to produce well-reasoned opinions rather than going around protesting that one works hard.

Topic six:  Each one of the Supreme Court Justices is independent of the each other Justices.

Apparently, according to Mr. Alito, each of the five Justices who consistently votes in favor of the Chamber of Commerce does so independently. He assured the audience that the Justices don’t discuss the cases among themselves, except at the official conferences where they deliberate the cases. I find it hard to believe that the five majority Justices don’t discuss these cases among themselves in the halls or after the official work day, but that’s simply my gut feeling. Perhaps this is because three of the Justices have been caught spending significant of time palling around with the Chamber (see here, including the comments).

Topic seven:  The Justices “are not at each other’s throats.”

Mr. Alito told the St. Louis audience that the Justices have regularly-scheduled cordial lunches together at which they don’t discuss cases. I’m glad the Justices can get along, but this make does not make me feel better about the many opinions that are overly-friendly to the Chamber of Commerce. Was Alito trying to suggest that as long as a Justice of the Supreme Court smiles a lot and says please and thank you that this makes moot the quality of the jurisprudence? Those with great power can afford to present themselves amicably. Alito also mentioned that he doesn’t watch the news when Supreme Court cases are discussed. Again, I find this difficult to believe. Why bring this up? Mr. Alito mentioned that his opinions are sometimes viciously attacked by the dissenters, but that he is not offended by this. If he’s not offended, why bring this up either?

Topic eight: Some opinions mean a lot less than people think.

They don’t necessarily have the “reach” that people suspect, Mr. Alito claims. Too bad he didn’t elaborate on this point. Maybe he needs to rethink the “reach” of Citizens United. That case has a vast reach and it is perverting our democracy.  It doesn’t matter to me what a Supreme Court justice thinks about the reach of the case when I can clearly see with my own eyes that the reach is extensive and the effects of some of the Courts recent cases are horrific.

Topic nine:  Mr. Alito asserts that some of the things written about the Court are “wrong.”

For instance, he mentions a flurry of articles criticizing Justice Clarence Thomas because Thomas hasn’t asked a single question at oral argument for five years. Alito asserts that Justice Thomas’ “approach” to oral argument puts him in the same category as one of the most highly respected Justices in history, John Marshall. Mr. Alito seemed to be suggesting that since Clarence Thomas didn’t talk at all, he was a great judge too. This is palpably, laughably, unsound logic that completely fails to address the concerns that lawyers have long expressed about the stark silence of Mr. Thomas.

Topic 10: It is false that the Supreme Court is pro-business.

Mr. Alito complained that this accusation is often made, but it is “not true.” He asserted that most cases decided by the United States Supreme Court recently have gone against businesses. This is a curious claim indeed. I’d like to mention the long list of cases he cited to support this proposition, but he did not mention any cases. Nor could he. Perhaps he was suggesting that Wyeth v. Levine, 555 U.S. 555 (2009) was a pro-consumer decision of the Supreme Court, but Wyeth (rejecting federal preemption in pharmaceutical labeling for cases) was a decision in which Alito himself vigorously dissented. He wrote a 26-page dissent anti-consumer dissent, joined by Chief Justice John G. Roberts and Justice Antonin Scalia.  At his St. Louis talk, Alito continued protesting the notion that the Court has a pro-business bias. He reassured the audience that he never worked for the Chamber of Commerce, and that his only to employers have been the Department of Justice and United States courts. He stated “I have never earned an honest living in the private sector.” He didn’t mention that he hangs around with his Republican buddies conjuring up new legislation to help the Chamber of Commerce.

As part of this 10th topic, Alito again told the audience that he is compelled to rule the way he does. “Maybe the law has something to do with the outcome of cases.” He described this as a “radical thought.” Again, this black-and-white mindset is typical of the types of people who are not willing to do serious introspective self-critical analysis. Why do Justices do what they do? As long as one believes that the law compels it (even though four dissenters claim that the law compels their viewpoint) one is naïve and potentially dangerous. How could anyone who is working to legal profession for decades fail to realize the plasticity of words and the real world complexity that makes case analysis at the Supreme Court (or should make it) difficult?

To end his talk Mr. Alito claimed that the United States is has a “great” legal system. He admitted that things are not perfect, but offered no clue as to what the problems might be. And without offering any insight into the way the legal systems of other countries operate, he concluded that the United States has “the best legal system in the world.” Things are fine here in the United States . . . because he says so.

[Original Image of Samuel Alito can be found at http://en.wikipedia.org/wiki/File:Bush-Alito-051031.jpg Dreamstime image of gears by Janpietruszka, with permission.  Final image by Erich Vieth].

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Category: Court Decisions, Law, Psychology Cognition

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

Comments (4)

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  1. Brynn Jacobs says:

    The Honorable Justice doth protest too much, methinks.

  2. Tim Hogan says:

    If someone runs for Congress on the "Impeach Roberts and Alito" ticket, they've got my vote!

  3. Erika Price says:

    The defensiveness of Alito's 'topics' really strikes me. We don't fight one another–really! We all come to independent decisions–I promise!

    Of these protestations, topic five strikes me in particular as a pathetic defensive hand-wave. I had to read up on the SCOTUS for a high school debate back when Roberts was replacing Rehnquist. At that time, I recall a number of interviews and articles asserted that Justice Stevens was the only justice who wrote his own decisions. Apparently clerks have a longstanding reputation for doing all the research and writing. But this is a reputation that only serious SC nerds would know or care much about. By declaring that he really, truly writes his own work, Alito seems a little desperate and draws attention to an issue that probably no one would have considered otherwise. (To be fair, perhaps the newer, post-Rehnquist-Court Justices do all of their own writing.)

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