By Bill Blum
“The Supreme Court follows the election returns,” or so opined satirist Finley Peter Dunne in 1901 in language purged of its original Irish brogue (see Chapter 3 of Dunne’s Mr. Dooley book). Back then, the court was headed by Melville Weston Fuller, its eighth chief justice, under whose enlightened stewardship it handed down Plessy v. Ferguson, the infamous decision that upheld the constitutionality of state laws requiring people of different races to use “separate but equal” public facilities.
What Dunne meant, of course, was that the court was a partisan political institution, often less dedicated to following constitutional values than currying favor with the nation’s elites, and that it was also capable of responding to shifts in public opinion. So it was at the turn of the last century and so it is today.
But exactly how the court reads and reacts to elections is by no means a given. Thus we must ask whether the court’s current ultraconservative Republican majority will interpret Barack Obama’s re-election as a call for reflection and moderation or as a signal to lurch even harder to the right. At least one member of the Republican majority—Justice Samuel Alito—has answered that he sees no reason to do anything but double down on past practices.
Speaking in Washington, D.C., on Nov. 15 at a Federalist Society convention dinner, Alito delighted an estimated throng of 1,500 with a self-righteous defense of the court’s 2010 Citizens United decision, which overturned decades of federal campaign finance law, ushered in a new era of corporate personhood and unleashed an orgy of political spending through super PACs and thinly regulated nonprofit organizations. Rebutting criticisms of the decision leveled by many liberals, lawyers and the president, Alito praised Citizens United as a common-sense ruling that merely extended the same First Amendment rights to corporations that had been long accorded to individuals, newspapers and media companies. “Surely the idea that the First Amendment protects only certain privileged voices,” he declared, “should be disturbing to anybody who believes in free speech.”
Also disturbing, Alito continued, were the administration’s positions on health care and other issues that had come before the court, which illustrated a view of the country “in which the federal government towers over people.” Such a vision, he suggested, quoting out of context a passage from Charles Reich’s 1970 best-selling book, “The Greening of America,” confirmed that the nation had entered a “moment of utmost sterility, darkest night, most extreme peril.” Still, the current danger, he assured, was nothing new and in any event the remedy was to stay the course.
Although it is not unusual for Supreme Court justices to address legal organizations like the Federalist Society or to deliver college commencement orations, Alito’s speech was something different, at once an expression of contempt for a sitting president and, like Mitt Romney’s infamous 47 percent remarks, a transparent repudiation of the exercise of federal powers to rein in corporate excesses and mitigate the harshest aspects of the private market. The speech also marked something of a coming out party for Alito. After several years of operating as a second banana to Justice Antonin Scalia, the court’s aging conservative standard-bearer, Alito may be ready to assume a leading ideological role. Scalia will turn 77 in March. Alito, by contrast, will turn 63 —no kidding—on April 1.
Progressives who closely monitor the court have long been wary of Alito. In 2006, the national board of the ACLU, citing Alito’s “troubling decisions on race, religion and reproductive rights” while a federal appellate judge, opted to oppose his nomination to the Supreme Court, marking only the third time in its long history that the organization had sought to block a high-court appointment. (The other two challenges involved Robert Bork and the initial nomination of William Rehnquist.) After a filibuster suggested by John Kerry failed to attract support, the Senate voted 58 to 42 to confirm Alito.
Although he had promised in his confirmation hearings to keep an open mind on all issues, Alito wasted little time once seated showing his partisan colors, both on and off the bench. In 2007, he authored the 5-4 majority opinion in the Lilly Ledbetter case, barring gender-based pay discrimination complaints under the 1964 Civil Rights Act if the claims are raised more than 180 days after the discrimination first occurred. (The ruling was effectively overturned by Congress and President Obama two years later in the federal Fair Pay Act.)
In 2008, Alito joined Scalia’s concurring opinion endorsing Indiana’s harsh voter ID law (Crawford v. Indiana). In 2009, he headlined a fundraiser for the Intercollegiate Studies Institute, a right-wing nonprofit active on campuses across the country and closely linked through its board of directors to Dick Armey’s FreedomWorks Foundation. And in 2010 came the now-famous confrontation at Obama’s State of the Union address, when Alito sneered openly on national TV, mouthing the words “not true” as the president predicted that Citizens United would open the “floodgates for special interests, including foreign corporations, to spend without limit in our elections.”
During the 2011-2012 term, Alito bolstered his record as a reliable right-wing crusader, voting identically with Scalia in 88 percent of the court’s opinions and joining the elder conservative’s blistering dissent from the majority’s approval of the Affordable Care Act’s individual mandate. Alito also dissented from one of the court’s few progressive 2012 opinions, expressing outrage and ire as the majority struck down mandatory life sentences without parole under the Eighth Amendment for juveniles convicted of murder (Miller v. Alabama).
This term, as the court takes up a historic challenge to the continuing validity of the Voting Rights Act and examines the constitutionality of same-sex marriage, Alito’s votes are all but a foregone conclusion. We know that he’s seen the election returns and is entirely unfazed by them. The only unknown, at least in the short run pending Scalia’s retirement and replacement, is whether the court’s minority liberal bloc can persuade one of the tribunal’s potential swing justices—either Anthony Kennedy or even Chief Justice John Roberts after his work on the Affordable Care Act—to read the returns differently.
Supreme Court Justice Samuel Alito in 2007.