| On Friday, the
Wall Street Journal published
a rare interview with Supreme Court Justice Samuel Alito about a book that he
says he hasn’t read. |
| The interview was
conducted by James Taranto, the Journal’s editorial features editor, and
focused on a
biography of the justice that was published in April by Peter Canellos, a veteran
journalist and editor who has written and edited award-winning work on the
Court and the justices. Based on hundreds of interviews, the book is a deeply
reported account of Alito’s life that also offers a critical examination of the
justice’s interpretive methodology — which Alito has described as “practical
originalism” — and questions whether Alito’s life experiences and political
preferences have influenced his decisions. |
| Taranto attacked the
book for having “an ideological agenda” aimed at discrediting the justice and asked
Alito to respond to passages and criticisms in the book even though, by his own
account, Alito hasn’t read it. The results are odd, at times illuminating, and
not particularly flattering for the justice, who, despite a sympathetic
interlocutor, resorts to cliches to defend his work from charges of political bias
in general and pro-Trump
bias in particular. (“I vote in every case the way I think the case should
be decided,” Alito offers at one point.) |
| This is not the
first time that Alito has appeared in the Journal’s Opinion section under
unusual circumstances. In 2023, Alito published an essay in the section to preemptively rebut a story from ProPublica that
reported on a luxury fishing trip he had taken years earlier, paid for by a
billionaire whose hedge fund has repeatedly had interests in cases before the
Court. Media critics, legal commentators, and experts in legal ethics expressed various forms of disapproval. |
| I had already been
planning to speak with Canellos about his new book prior to Alito’s interview
in the Journal, and this seemed as good a time as any to do it. (Disclosures:
Taranto has published my work in the Journal’s Opinion section on
several occasions. Canellos and I worked together at Politico and remain
friends.) |
| Canellos and I discussed
his reaction to Alito’s interview with the Journal, what he made of
Alito’s responses to some of the points raised in the book, and the influence
of Alito’s life on his jurisprudence in areas like abortion, religious freedom,
and immigration. Canellos also pushed back sharply on the suggestion that his work
was driven by an ideological agenda. |
| “There is no agenda
other than to inform people of how we got to today’s conservative-dominated
Supreme Court,” Canellos told me, and “to plumb the social and cultural and
political roots of what is arguably the most transformative legal movement in
American history.” |
| This interview has been edited for length and clarity. |
|
| On Friday, The
Wall Street Journal published an interview with Alito about your book. He said
that he hasn’t read it. What was your reaction after you read the interview
with him about the book that you wrote that he hasn’t read? |
| As a former editorial page editor, I think the author of the
piece, James Taranto, can say whatever he wants, but he describes my book as
being hostile to Alito and originalism. It’s not hostile to Alito and
originalism. |
| This is not a book that was aimed at flattering Justice
Alito. It’s not a book that’s aimed at flattering Justice Alito’s critics. It’s
a work of journalism. It’s a work of history, and it has journalistic
integrity. |
| What concerns me is that people constantly, on the left and
right, are asking me, “What lane are you in? Is this a vicious attack or is
this a work of sycophantic praise?” |
| The answer is that it’s a work of reporting that raises
questions and provides answers and can be of real use to people, so it bothers
me when partisans try to characterize it as being blatantly one side or
blatantly another side. It’s a way of discrediting the book, of suggesting it
was created to advance an agenda. There is no agenda other than to inform
people of how we got to today’s conservative-dominated Supreme Court, to plumb
the social and cultural and political roots of what is arguably the most
transformative legal movement in American history. |
| Your book advances a
particular view of Alito’s life — a subject that you reported out extensively —
and how it has influenced his career and his jurisprudence. How would you sum
up that thesis? |
| It’s a multifold thesis. It says that the roots of the
conservative legal movement grew out of a period in the late 60s and 70s, and
it grew out of a generation of people who came of age in the second half of the
20th century and who shared a lot of feelings in common. |
| Mostly they were people who were raised with an intense
feeling of patriotism and American exceptionalism, which largely came out of
the Cold War era — lessons in public schools about the greatness of the
founding fathers and the Declaration of Independence and the Constitution. That
was Alito’s generation. |
| That was also the generation of people who started the
Federalist Society. Many of them were like Alito, the sons and grandsons – and
a few daughters and granddaughters — of
European immigrants, who came to this country for a better life, suffered
hardships, but came out of it with a message of hope: “We sacrificed and now
you are going to bear the fruits of that sacrifice.” |
| In Alito’s case, he was also a very religious Catholic
growing up. So were many other leaders of the conservative legal movement. |
| The feeling is that out of those sets of experiences came a
view of America that kind of naturally led to originalism. It’s a view of
American greatness, not perhaps as experienced by the founding fathers, but
more as experienced by people hearing stories of the founding fathers and what
the true spirit of America is and was — hearing those stories in the 1950s and
1960s, and then being greatly disaffected by the social changes of the late
1960s and 1970s and beyond. |
| What sorts of changes
in particular? |
| In Alito’s case, he was an exemplary student in high school,
at Steinert High School in Mercerville, New Jersey, but in his senior year,
there was a very upsetting event: the deadly riots in Trenton that followed the
Martin Luther King assassination. There were real signs that seniors in high
school and others were troubled by this. |
| Then he went to Princeton and he was in the last all-male
class to enter Princeton, and with women came social changes — conversations
about abortion and premarital sex and other things that were challenging to a
young religious conservative. |
| He was also, as he has talked about extensively, in ROTC at
a time of intense protest against the Vietnam War. He was an emblem in some
ways of the war effort because he was literally wearing a uniform on campus, at
a time when protesters would do anything possible to try to block Princeton’s
ability to cooperate with a war effort or to engage in war-related research. The
ROTC office was firebombed and extensively damaged during his time there. |
| So he came away with a sense of his values being under
siege, and it dovetailed with a larger critique of the U.S. Supreme Court, mostly
under Chief Justice [Earl] Warren and the first years of the [Burger] Court,
which saw the Supreme Court as the engine of many of these social changes and
the validator of many of these social changes. |
| Can you talk about
how you pieced together that portrait? I assume you tried to talk to Alito for
the book, correct? |
| I did, and he politely declined, which is certainly his
privilege and his right. But he was polite. There was no sense of tension
there. |
| My two researchers and I really fanned out to try to find
people who knew Alito during all those crucial moments of his career from high
school and growing up, including people who knew his parents, to college, to
law school, to his time in the U.S. Attorney’s Office in New Jersey, to his
time in the Reagan administration, to his years as a circuit court judge. |
| Collectively, we talked to hundreds of people. Not just
people who were friends of Alito’s, but other people who were classmates and
perhaps people who didn’t agree with what Alito’s positions were, even in real
time. |
| The picture that emerges of Alito is one that has come from
people who knew him, or shared similar experiences, at various stages of his
life. |
| Let’s talk about some
of the decisions where you can readily identify a connection between his
biography and his jurisprudence. Obviously, there’s
Dobbs, which overturned Roe v. Wade, and you write about
integration of the universities and the changes in sexual mores around his time,
but let’s set Dobbs to the side. |
| Are there other
decisions where you can see his biography informing how he came out? |
| Well, one is his critique of the Warren Court, which
undergirds the whole conservative legal movement, and it hit him personally in
several ways. |
| His mother was a public school teacher — a very, very
dedicated teacher — and principal. But she used Bible verses in her class. And
she herself said she was very upset when the Warren Court ruled that citing the
Bible in public schools is a violation of the Establishment Clause. |
| She was irked. She was upset. The Warren Court was sort of
sticking its fingers into her life and her independence as a teacher. |
| In addition, Alito has spoken of sitting in his bedroom at
home in his modest suburban home and hearing the click of a slide rule as his
father strived mightily to equalize the population in legislative districts in
New Jersey. This was also a mandate from the Warren Court, and he later said
that he disagreed with that mandate. It put his father in a particularly
awkward position because his father was the nonpartisan head of the New Jersey
Office of Legislative Services, and any risk or any show of partisanship or
anything that put him at odds with members of the legislature put his job in
jeopardy. |
| In addition, Alito has been a leader in activating and
expanding protections for religious people under the Free Exercise Clause. This
has been an interest of Alito’s going back in his life, both in terms of his
own religion, but also his academic interest in law and religion, which was
reflected in his note for the Yale Law Journal when he was in law school, as
well as some of his studies at Princeton. |
| In addition, his mentor at Princeton, Walter Murphy, was a
man who specialized in studying the internal dynamics of the Supreme Court, and
how certain justices — for example William Brennan — were able to get five
votes for positions that really transformed the law. And Murphy’s idea was that
a great deal of power on the Supreme Court accrues to the justice most adept at
bringing others onto his side. |
| Alito has proven to have been a good pupil of Murphy’s. Alito’s note at
Yale Law School, in the Yale Law Journal, was an exploration of how the
Supreme Court behind the scenes brought about a decision in an important
Establishment Clause case. |
| Clearly those lessons sunk in. I think that his influence on
the Supreme Court has been far greater than just as a conservative voting for
very conservative rulings; it’s been his ability to bring others onto his side. |
| A lot of people —
including judges and justices themselves — seem resistant to the idea that the
life experience or the biography of a judge or a justice might actually
influence their jurisprudence, even though it seems natural that it would. |
| Can you talk about Alito’s
Italian heritage? Alito’s father was an Italian immigrant. His mother was the
daughter of Italian immigrants. Even to this day, he feels a very strong
connection to that heritage. |
| He
identifies very strongly with his Italian American heritage. He’s proud of it.
He considered it an important part of his upbringing. |
| | | “He identifies very strongly with his Italian American heritage. He’s proud of it. He considered it an important part of his upbringing.” |
|
| He and his parents were very conscious of discrimination
against Italian Americans, and there was absolutely discrimination in the years
that his parents were growing up, especially. He’s been concerned about
stereotypical portrayals of Italian Americans in movies and television,
condemning The Sopranos, for example, for presenting a very one-sided view of
the Italian American experience. |
| He has sought to preserve a statue of Christopher Columbus
in the neighborhood where his parents grew up, believing it to be an important
sense of heritage and belonging for Italian people. This has very much been a
guiding principle for him. |
| I think you can, out of those roots, see how he became
interested in, for example, church and state issues. He associated the Catholic
Church with that Italian American upbringing. He was a regular churchgoer. |
| He has, through the Free Exercise Clause, tried to establish
religious values as a counterpoint to anti-discrimination protections,
particularly regarding the LGBTQ community. Clearly, he believes that if
conservative Catholics feel that it’s against their religion to acknowledge the
equality of same-sex marriage, for example, they should be able to cite a
religious exemption to [avoid] having to follow rules aimed at promoting the
acceptance of what it means to be a couple. |
| That’s one set of
cases. But then there is another set of cases that became very important during
this past term oriented around birthright citizenship and immigration issues. I’m
thinking in particular about Mullin v. Doe, which
ended temporary protected status for Haitians and Syrians, and the case on
birthright citizenship. |
| Alito wrote the decision in Mullin, and he was in the dissent in the birthright citizenship case. What do you make of his positions in
those cases in light of his commitment to his own roots and ancestry? |
| I think
that it’s striking that he does not see any apparent analogy between the
experiences of various immigrant groups, legal and undocumented, and the
experience of European immigrants who came to the United States in the early
decades of the 20th century. He clearly does not see important parallels
there. |
| | | “I think that it’s striking that he does not see any apparent analogy between the experiences of various immigrant groups, legal and undocumented, and the experience of European immigrants who came to the United States in the early decades of the 20th century” |
|
| I think that in the case involving the Haitians, he was very
much guided by the unitary executive theory, which he had helped to create in
the Reagan administration, and his overall view of the president as holding
executive decision-making power in this country. He based that decision on the
president’s right to make a determination, in this case under a statute, as he
saw fit on whether Haiti was a dangerous place for people to return to or not,
and saw no grounds for further judicial inquiry into that decision. |
| In the Journal piece, Alito also responds
indirectly to your critique of his interpretive methodology, which he has
described as “practical originalism.” |
| What is your sense of his philosophy, and
what are the issues that you identified in the book that raise some questions
about the integrity of the theory? |
| There have been originalist attacks on Alito’s positions in
cases involving the individual right to carry guns, for example, and even in
his core belief in the free exercise of religion. |
| Scholars had written originalist critiques suggesting that
an individual right to carry was not part of the original understanding of the
Constitution and that the Free Exercise Clause was not intended to have a broad
application. It was intended only to prevent the government from outlawing
religions. |
| Those critics would say in these very important areas for
Alito personally and for conservatives, he’s not in touch with the original
understanding of the Constitution. I think when he adds the term “practical” to
his interpretation of originalism, I think that we can take it at face value,
his assessment that he doesn’t want to be so rigid and theoretical that a judge
feels no discretion to apply common-sense principles to a new fact pattern. |
| The example that was cited in the Journal article was
his disagreement with Scalia over violent video games. He felt that while the
First Amendment did indeed protect violent forms of speech, the Court should
not jump to the conclusion that new technologies such as video games do not
have some special risks inherent in them that make them imperfectly analogous
to the methods of speech in the time of the framers of the Constitution. |
| The point that I make in the book is that in these areas
where he deviates from what you might consider Antonin Scalia’s approach to
originalism, it leads the Court to a more conservative outcome. So the practical aspect of his
practical originalism has the effect of moving the Court to the right. |
| | | “The practical aspect of his practical originalism has the effect of moving the Court to the right” |
|
| I don’t think he actually refuted that in the article. |
| In the interview,
Alito says, “There’s not an algorithm that yields a definitive answer to every
question that is asked, and determining the applicable level of generality
requires an analysis of what the provision is getting at. What is the
fundamental rule here? I think even Justice Scalia recognized that.” |
| What did you make of
his rejoinder on this point? |
| Honestly, it made me think of the first principles of the
conservative legal movement, which were that the Constitution should mean the
same thing tomorrow as it meant yesterday, and that it should be a fixed
document, and the belief that the Warren Court had used open-ended provisions
and imperfect analogies to bring about liberal changes in society. |
| When
Justice Alito talks about trying to ascertain what a provision is really
getting to and thinking about the underlying meaning of these provisions, it
doesn’t strike me as being so different from what William Brennan might have
said in terms of trying to ascertain a legal principle and then apply it to a
new set of facts. |
| | | “When Justice Alito talks about trying to ascertain what a provision is really getting to and thinking about the underlying meaning of these provisions, it doesn’t strike me as being so different from what William Brennan might have said in terms of trying to ascertain a legal principle and then apply it to a new set of facts.” |
|
| Now, conservatives will immediately balk at any comparison
between today’s conservative justices on the Supreme Court and what they
perceived to be activist liberals of 50 years ago. |
| But I think for much of the Federalist Society, that’s the
rub, right? Are the Court’s decisions today stretching the bounds of
originalism in order to bring about conservative results? And isn’t that what
this whole movement was arrayed against in its initial form? |
| I’m not coming down one way or the other and saying that the
Court has violated its originalist principles or not. But I am saying it’s the
question of the moment within the conservative movement. And that’s the frame
in which we should be parsing Justice Alito’s words and those of other
conservatives, too. |
| Here’s another
interesting quote from the piece, specifically in the context of equal
protection and gay marriage. Alito says, “You can take an important principle
that’s in the Constitution, like equal treatment, and if you view it at a very
high level of generality, you can say that the Constitution requires equal
treatment in a context that never occurred to, or never could have occurred to,
those who adopted the provision.” |
| What did you make of
that? |
| That’s in a specific context in which Alito very strongly
disagrees with the Court — the decision on same-sex marriage — for which he was
pretty much the leading dissenter, the most impassioned dissenter. |
| In that case, he is expressing his fidelity to the kind of
original principles of the conservative legal movement, which is to say: the
Constitution means what it meant at the time that it was ratified, not what it
means to subsequent generations. |
| Strictly speaking,
Alito is right. If you take a principle and define it at a high enough level,
you’ll capture lots of things. |
| But of course, originalists
are accused of doing the inverse — defining contemporary fact patterns at a
very high level of specificity, looking through the history, and then
concluding that this highly specific contemporary fact pattern was not in the
history so how can it possibly be covered by such and such provision of the
Constitution when the framers didn’t even know about it? They didn’t know that
there would be video games, etc. |
| I actually think he’s
right about this — about generality and specificity and how it informs the
outcomes of cases — but he does not seem to appreciate that the critique
applies just as easily to him as it does to anyone else. |
| He is expressing his skepticism about equal treatment and
equal protection laws being used to protect groups like lesbians and gays. |
| But when it comes to things like the free exercise of religion
or the Second Amendment, Alito is not a justice who avoids broad generality. He
is a person who interprets those provisions of the Constitution at a very high
and general level to bring about sweeping change in society. |
| The Court’s current
Second Amendment jurisprudence is entirely generalities. No one at the time of
enactment had any idea what sorts of weapons would exist today, much less a
vision of how the Second Amendment would apply to them. |
| You are certainly correct that that is a critique of the
current Court’s Second Amendment jurisprudence, but that is for others to say [rather]
than for me to say. I will say it certainly is an issue. |
| This is one issue,
and then there are the issues surrounding his pride about his Italian heritage and
his inability or unwillingness to reconcile that with the issues that are in
front of the Court today. |
| It kind of seems like
he’s unwilling to reflect on himself. |
| I think that’s true. |
| Look, I think that Sam Alito is an extraordinarily skilled
lawyer, and he has shown himself to be a truly consequential Supreme Court
justice. Let’s start with that. Alito deserves a certain amount of respect and recognition because of
what he’s been able to achieve in this society. |
| | | “Alito deserves a certain amount of respect and recognition because of what he’s been able to achieve in this society.” |
|
| I think that he uses that lawyer’s intelligence to create
distinctions that may seem very clear in his mind, and may give him the sense
that he is objectively judging the situation, when, in fact, he’s behaving more
like a lawyer defending a certain position than as a truly independent assessor
of the facts. |
| When Joe Biden sought to eliminate student loan debt under a
legal provision that said the president has the right to waive or modify the
repayment schedule, liberals had a rather plausible case that in the simple
meaning of the word “waive,” that could include permanently waiving and
permanently preventing repayment. Alito didn’t see it that way and joined in an opinion
by Chief Justice [John] Roberts that said that that was not a power that
Congress intended to extend to the president. |
| Okay, that was a work of textual analysis that Alito
obviously was comfortable with. |
| Then you look at the tariff
case, which turns on the word “regulate” in a statute that gives the
president the right under extraordinary circumstances to “regulate”
international trade. Alito took the view that that clearly and plainly includes
the right to impose tariffs. Roberts and the court’s majority obviously
disagreed with Alito’s position. |
| You could look at it and say, since Biden had a plausible
interpretation of the word “waive,” that the Court was being a little tight in
its interpretation of the law when Biden was president. You could also look at
the interpretation of the word “regulate” to include tariffs and say the Court
was being a little generous, at least the dissenters were being generous, in
suggesting that Trump had power under that statute to impose these billions and
billions of dollars in tariffs. |
| Now, the good lawyer Sam Alito would come leaping in with a
lot of distinctions and a lot of arguments about what was in the head of the
legislature when those provisions were established. But the question is, is he
looking at it truly through an objective lens? Or is he looking at it through
the lens of a conservative who might agree with Trump’s decision to impose
tariffs or feel that that power was really important for a president, while
feeling offended at the idea that people who borrowed money for student loans
would not have to repay it? |
| That’s the question that Sam Alito and others have to
wrestle with. |
| Alito also made clear
in the interview that he’s going to be on the Court for another term. At this
point that’s not unexpected, given where we are on the calendar, but certainly
earlier this year and last year, a lot of people were wondering whether that
was really going to be the case. Now we have him on the record. |
| What do you make of
that? Is it that he’s not done yet? Is it that he doesn’t want to be pushed
out? He understands that he is running the risk that his seat might become
vacant in the years to come and that a Democratic president could end up
filling it. |
| It certainly is within his right to stay, and there has been
no suggestion that he has not been up to the job in recent years. |
| In fact, he’s at a peak of influence right now, and I’m sure
that was a consideration for him in wanting to stay. |
| There will be cases coming up, including in this next term,
that will enable him to expand protections for the free exercise of religion
even further than he has already succeeded in extending them. |
| I think that he also believes, probably correctly, that
within the conservative movement, he is uniquely effective. The story of this Court in the
last term or two has certainly been Roberts versus Alito in certain areas where
Roberts wants to hew to a traditional interpretation of the law, and Alito
wants to change that interpretation. |
| | | “The story of this Court in the last term or two has certainly been Roberts versus Alito in certain areas where Roberts wants to hew to a traditional interpretation of the law, and Alito wants to change that interpretation.” |
|
| They kind of battle for the soul of the three Trump
appointees on the Court. In cases like birthright citizenship and tariffs,
Alito lost, but was part of a spirited team of dissent. And in a case like Dobbs,
Alito won. |
| I think he feels that a conservative appointee coming in
fresh is not going to have anything like that kind of influence. So, while
people on both the left and right may view a conservative jurist as being
interchangeable in some ways, I don’t think that’s actually correct, and I
think Alito knows that’s not correct. |
