Justice Samuel Alito does no service to the Supreme Court


The Supreme Court of the United States has traditionally been one of the most respected institutions in the country. Maintaining this stature is proving difficult.

Gallup released new results last week showing that public attitudes towards the High Court have fallen to their lowest since the pollster began asking the question in 2000. In theory, judges could be indifferent to American views. , focusing entirely on constitutional litigation without considering what may or may not enjoy public support.

But in practice, several justices seem to have taken note of the Supreme Court’s damaged reputation – and they seem keen to help turn the tide.

Judge Stephen Breyer, for example, recently published a book at the wrong time, which argues that the country’s highest court should not be seen as a partisan political institution, despite all the evidence to the contrary. Around the same time, Justice Amy Coney Barrett attempted to champion the political impartiality of the Supreme Court – while speaking alongside Senate Minority Leader Mitch McConnell, who threw her onto the bench. during the presidential election last fall as part of a cheeky political display.

A week later, Judge Clarence Thomas insisted that judges are not “politicians” and that it is the court’s critics, not the court’s rulings, that “will jeopardize any confidence in the courts. legal institutions ”.

Yesterday, of course, it was Judge Samuel Alito’s turn. NBC News reported:

Supreme Court Judge Samuel Alito said on Thursday that recent criticisms of court rulings in cases involving abortions and deportations unfairly accused conservative judges of acting in secrecy and in haste. The two rulings – allowing Texas’ new abortion law to come into force but blocking the Biden administration’s moratorium on deportations – were delivered within a short period of time, with no oral argument or the usual timeline for filing. written briefs. Rather, they were the products of what has come to be known as the court’s “ghost dossier”.

In remarks at Notre Dame Law School, the conservative jurist said: “The catchy and sinister term ‘shadow case’ has been used to describe the court as having been captured by a dangerous cabal using underhand and inappropriate methods to obtain its means [by issuing decisions in the dead of night]…. This portrayal fuels unprecedented efforts to intimidate or undermine the court as an independent institution. “

For those unfamiliar with the term ‘shadow case’, the New York Times recently explained what the term refers to: ‘More and more frequently, the court deals with important cases in a rush, considering motions. that often result in late decisions. issued with little or no written advice. These orders have reshaped the legal landscape in recent years on high-profile issues. “

Part of the problem with Alito’s characterization is his indifference to the fact that some of the criticism has come, not only from journalists and outside observers, but other judges. As NBC News’ Pete Williams explained in his report:

The Supreme Court’s decision on September 1 to allow the Texas abortion law to come into force “illustrates how phantom court rulings can deviate from normal principles of abortion procedure. appeal, ”Judge Elena Kagan wrote in a brief dissent. Kagan said that because the court acted in haste, without the aid of the appeals court and on the basis of superficial arguments, “the majority decision is emblematic of too much of the decision making. of this tribunal’s decision in the context of a shadow case – which every day becomes more unreasonable, inconsistent and impossible. defend.”

Additionally, Alito appeared to distort the dimensions of the underlying controversy. Steve Vladeck, professor of law at the University of Texas at Austin, describe complaints from conservative justice as “biased”, adding: The criticism is not this [the Supreme Court] should always grant or always refuse emergency assistance; is that subsidies and refusals are inconsistent, a problem exacerbated by the two their lack of motivation and the Court’s insistence that they are now a precedent. “

Leah Litman, professor of law at the University of Michigan, also Underline Alito’s eagerness to complain to media professionals, even citing an article by Adam Serwer of The Atlantic, which the courts called “inflammatory”. He led Senator Chris Murphy, a Democrat from Connecticut, to respond, “Judges turning into political actors, giving speeches attacking journalists, it’s terrible for the court and terrible for democracy.”

This is a difficult point to dismiss. It is understandable that Alito expresses his concern about possible “damage” to the High Court “as an independent institution”, but he is a bad messenger for the message.

After all, last fall, Alito made surprisingly political remarks at a Federalist Society event, in which the Tory complained about public safety restrictions during the pandemic, before directing his frustrations against the marriage equality, reproductive rights and five seats in the United States. senators, each of whom is a Democrat.

“This speech is like waking up from a vampire dream,” wrote Kim Wehle, University of Baltimore law professor and former federal prosecutor shortly after. “Unscrupulous, political and even angry. I can’t imagine why Alito did this publicly. Totally inappropriate and detrimental to the Supreme Court.

If Alito is concerned about the public’s perceptions of the Supreme Court, perhaps he should stop making speeches like these that undermine the public’s perception of the Supreme Court.

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