Top 10 List of Justice Alito's Lowest Moments

Justice Samuel Alito's constitutional law jurisprudence is centered around old-fashioned and often pernicious views concerning women, family, LGBTQ issues, unenumerated rights, and partisan politics. But this blog post is not about Alito's judicial philosophy. This is a blog post about the man. Buckle up. Here are ten representative examples of Alito's awful behavior.

1) In 1985, Alito applied for a job in the Ronald Reagan Justice Department. He listed on his resume membership in an alumni group with the name "Concerned Alumni of Princeton." Was this group "concerned" with world peace, famine around the world, climate change, or just getting better meals at Princeton? Nope. The group was "concerned" that too many women were being admitted at the expense of the children of alumni (who of course were mostly white). The New York Times reported the following in the article linked above:

The group had been founded in 1972, the year that Judge Alito graduated, by alumni upset that Princeton had recently begun admitting women. It published a magazine, Prospect, which persistently accused the administration of taking a permissive approach to student life, of promoting birth control and paying for abortions, and of diluting the explicitly Christian character of the school. 

As Princeton admitted a growing number of minority students, Concerned Alumni charged repeatedly that the administration was lowering admission standards, undermining the university's distinctive traditions and admitting too few children of alumni. "Currently alumni children comprise 14 percent of each entering class, compared with an 11 percent quota for blacks and Hispanics," the group wrote in a 1985 fund-raising letter sent to all Princeton graduates. 

Sexism, racial insensitivity (at best), Christian supremacy, and 19th century views on women's reproductive rights seem to be the hallmark of this group that Alito proudly claimed membership in when he applied to work for the Reagan Administration. In other words, Alito is who he always was, and the "Concerned Alumni of Princeton," with their focus on white-male success, was a perfect fit for him.

2) When the United States Court of Appeals for the Third Circuit decided Planned Parenthood v. Casey, before the case went to the Supreme Court, the three-judge panel upheld numerous sections of a long and detailed anti-choice statute. The only part of the law the panel invalidated required wives to inform their husbands if they were obtaining an abortion unless complying with that legal requirement would place her or her family in physical danger or the husband was not the father of the fetus. As a lower court judge, Alito disagreed with the other panelists and would have upheld that part of the law along with every other provision at issue. When the Supreme Court decided the case, that spousal notification provision was also the only part of the law the Court invalidated.

In his lower court opinion, Alito said that the law was constitutional because the Pennsylvania legislature could have concluded that women who are "initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems--such as economic constraints, future plans, or the husbands' previous expressed opposition--may be obviated by discussion prior to the abortion."

Notice the phrase "perceived problems." It is as if women have no independent status apart from men. The "Concerned Alumni of Princeton" would no doubt be proud.

3) In 2010, Alito infamously mouthed the words "not true" during President Obama's State of the Union. I am confident Alito knew his silent scream would be shown to the entire world. Rude, out-of-place, inappropriate, and not judge-like at all are the best descriptors I have for this outburst of unprofessionalism.

4)  In 2012, Alito broadcast to the world, and more importantly to right-wing litigation firms, that they should find a case to reverse the Court's holding in Abood v. Detroit Board of Education. That case held states could require their own employees to pay dues to public sector unions negotiating for better wages and overtime rules, etc. He made this ask in a case where the parties did not argue Abood should be overturned. As one Court watcher wrote:

Although none of the parties challenged Abood, in his majority opinion, Alito broadcast his desire to overrule that 40-year-old decision. He called its rationale “an anomaly” and “a remarkable boon for unions,” and wrote that the Abood line of cases “approach, if they do not cross, the limit of what the First Amendment can tolerate.” 

An alarmed Justice Sotomayor waved a warning flag, writing in a concurrence that Alito’s opinion “strongly hint[ed]” that he intended to jettison Abood. Attacking a precedent the parties had not even challenged, she argued, broke the Court’s “own rules and, more importantly, disregard[ed] principles of judicial restraint.” 

Alito's call did not go unanswered, as a few years later the Court overruled Abood in an opinion he authored.

5) In 2014, Alito recused himself in two cases involving a company he owned stock in. So far, so good. Except that he then "unrecused" himself  a few days before the argument after he sold the stock so he could hear the case.

One does not need to be an expert in recusal to know that is not how recusal is supposed to work, but Alito has unrecused himself nine times in this manner. Hey, Justice Alito, sell your stock before you decide whether to sit on a case, okay? 

6) After the leaked Dobbs opinion was seen by the world in all its anti-woman awfulness, the final opinion, written by Alito, referred to Mathew Hale 10 times. Hale was a 17th-century English legal scholar who was notoriously anti-woman (even by the standards of his time). Here is how Politico described this terrible inclusion:

When U.S. Supreme Court Justice Samuel Alito, in a draft opinion obtained and published this week by Politico, detailed his justifications for overturning Roe v. Wade, he invoked a surprising name given the case’s subject. In writing about abortion, a matter inextricably tied to a woman’s control over her body, Alito chose to quote from Sir Matthew Hale, a 17th-century English jurist whose writings and reasonings have caused enduring damage to women for hundreds of years.

The so-called marital rape exemption — the legal notion that a married woman cannot be raped by her husband — traces to Hale. So does a long-used instruction to jurors to be skeptical of reports of rape. So, in a way, do the infamous Salem witch trials, in which women (and some men) were hanged on or near Gallows Hill.

Alito had well over a month to delete these unnecessary references to Hale. His refusal to do so despite widespread and deserved criticism was to double down on the awful. 

And for the record, as most people reading this know, I am radically pro-choice and also have always thought Roe and Casey were wrongly decided (30-40 years from now the right to choose will most likely be stronger than at any time between 1980-2022). The problematic issue here is Alito's "own the libs" hormonal teenage boy mentality and his desire to discredit numerous prior Courts and justices, not to mention women in general, not, for me at least, the result in Dobbs.

7) Just a few weeks after the Dobbs screed came out, Alito travelled to Rome, yes Rome, to give a talk sponsored by, of course, Notre Dame, where he criticized foreign leaders by name and argued that the end of religious liberty is near and that those criticizing Dobbs were obvious partisan, liberal fools. This entire talk was both inappropriate and terribly mean. Alito knew Roe was an important symbol of gender equality for tens of millions of Americans but instead of being sensitive to their feelings of loss, he used his words to punch them over and over and over again.

8) As the world was imploding over the Covid-19 crisis, the Court had to decide a number of difficult cases involving the hard balance between liberty and safety that was struck by legislatures and governors across the country. I would like to think they were just doing their best during that crisis to make sure we made it through and, no doubt, good faith mistakes were made. 

But for Alito, these cases were easy and not difficult because of his view that he expressed to the Federalist Society that during the crisis legislatures imposed "previously unimaginable restrictions on individual liberty."

Unimaginable to whom? 

9) We recently learned that, during 2021, an upside down American flag symbolizing agreement with the stolen election narrative, hung outside the Alito house. When Justice Ginsburg publicly denounced Trump as a candidate she apologized and owned the mistake. If Alito had said, "yes, it was there for a short time, it was wrong, and we quickly took it down," that would be about all we can ask for (no one thinks he'd ever vote for Biden anyway).

But of course he did none of that. To do what RBG did takes at least a modicum of class and awareness of others. Instead, Alito blamed it on his wife, her fight with the neighbors, bad libs down the street, yadda, yadda, yadda. 

Supreme Court justices should not have partisan symbols draped on their homes. Full stop. If you do embrace such a symbol, take it down and admit your temporary lapse of judgment. As of this writing, Alito has not issued a word of apology or regret. In this sense, and many others, he is the anti-RBG, and that's a terrible thing to be.

10) Throughout his career, Alito has given talks about threats to religious liberty to religious groups detailing his objections to generally applicable laws that affect religious beliefs or practices and his outright hostility and prejudice towards the LGBTQ community. He has done this so many times (not just after Dobbs) that I detailed this misbehavior on this blog seven years ago! On that day in 2017, I wrote the following:

On at least three occasions over the last seven months, Justice Samuel Alito has made public remarks about the appropriate role of religion in this country that, if made by a liberal Justice, would likely result in conservative outrage and calls for recusal the next time the Supreme Court hears a case regarding religious liberty (there is such a case on the docket this term). At the annual meeting of the Federalist Society in November, 2016, Justice Alito said that only “conservative resolve” could prevent liberals from undermining gun rights, freedom of speech, and religious liberty. He also remarked that “religious freedoms are in even greater danger.” 

Alito has been making inappropriate public comments for a long time. He is rude, obnoxious, and appears to have no empathy for people unlike himself. His failure to recognize his own partisianship (not ideology, which is different) has led him to places and events Supreme Court justices should not go to but, if they do, certainly they should not discuss issues the justices will likely have to resolve. 

I could list many more problematic things Alito has said and done, But, I can't say it any better than Professor Sherry Colb, who tragically left us way, way too early, and to whom I dedicate this blog post. Sherry often told the truth about Alito, and she wrote the following about Alito's speech in Rome after Dobbs:

Alito did not pause to reflect at all on oppression by Christians in the name of Christianity or a particular Christian sect. Alito said nothing about the Crusades, the expulsion of the Jews from Spain and other European countries, the Spanish Inquisition, the European wars of religion in the sixteenth through eighteenth centuries, or, in our time, the Troubles in Ireland. Why not? Could it be that despite name-checking other faiths, what Alito means when he says “religious liberty” is really Christian liberty?

Sherry was spot on, and I simply can't do it any better.