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Maybe Alito’s correct, though there are reasons to doubt the certitude he expressed in an astonishing interview with the opinion side of the Wall Street Journal. And maybe “astonishing” isn’t the right word; Alito has shown himself to be thin-skinned and injudicious before.
It’s not as if the Journal interview, with editor James Taranto and Washington lawyer David B. Rivkin Jr., showed us an unknown side of a justice who has been on the court since 2006. “Aggrieved” and “bitter” — and without good reason for either, given that his side is winning — are standard Alito adjectives.
But the Journal interview crosses a line, even for Alito. “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody,” Alito told Taranto and Rivkin. Alito didn’t name names but freely assigned motive. “It was part of an effort to prevent the Dobbs draft … from becoming the decision of the court,” he said. “And that’s how it was used for those six weeks by people on the outside — as part of the campaign to try to intimidate the court.”
Nice work, because this is the kind of inchoate smear that is impossible to defend against. Alito offered no proof but in the course of doing so almost inevitably implicated liberal justices or one of their clerks. Imagine if one of the liberal justices gave an analogous interview to a liberal publication, saying she had “a pretty good idea” about who let slip the draft opinion in Dobbs v. Jackson Women’s Health Organization. Conservatives would be enraged, and rightly so.
“That’s infuriating to me,” Alito said of the notion that the leak came from Team Conservative. “Look, this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”
Somehow, he and the authors neglect to mention that just a week before the Politico scoop, a less incendiary but equally accurate version appeared in, yes, the Wall Street Journal editorial page. Chief Justice John G. Roberts Jr. had made clear, at the oral argument, that he was searching for a way to avoid outright overruling Roe v. Wade, the Journal observed.
“If he pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision,” the editors wrote. “If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.” Good guess, guys!
You’ve got to wonder: Does Alito think it was a liberal who was whispering to the Journal editorial writers? And was it sheer coincidence that the actual draft leaked at almost the same time? To quote Alito, “It’s quite implausible.”
This is peak Alito, bristling at slights even as he ladles out criticism.
There was Alito in Italy last summer: “I had the honor this term of writing I think the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders who felt perfectly fine commenting on American law.”
There was Alito in December, taking an unmistakable swipe at his liberal colleague Elena Kagan: “Someone also crosses an important line when they say that the Court is acting in a way that is illegitimate. I don’t think anybody in a position of authority should make that claim lightly.” Kagan’s comments were measured and well-taken. It cannot be that justices are empowered only to be cheerleaders for the court, never its critics.
And there was Alito just last month, dissenting from the court’s vote to leave the abortion medication mifepristone widely available. Seemingly unable to defend the lower courts’ rulings on the merits, Alito went out of his way to accuse his colleagues of intellectual dishonesty and then, without any foundation, asserted that “the Government has not dispelled legitimate doubts that it would even obey an unfavorable order.” Too much Fox News, Mr. Justice.
The Journal interview was of a sour piece, with Alito complaining that “this type of concerted attack on the court and on individual justices” is “new during my lifetime. … We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us.”
Hmm. I wonder why. When the court behaves injudiciously by twisting doctrine and abandoning long-standing precedents, when justices (yes, including you, Justice Alito) accept lavish vacations from self-interested parties, and when they emerge from their protective bubbles to point fingers without proof — that behavior becomes impossible to ignore and even more impossible to defend.
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