Posted on 06/27/2021 1:46:48 PM PDT by nickcarraway
Justice Samuel Alito has drawn attention for his fiery criticism of Supreme Court rulings, with some court watchers especially struck by the degree of barely concealed hostility he directed at fellow conservative justices.
Alito voiced opposition last week as the court, now with six conservative justices and three liberals, handed a narrow win to a Catholic charity and spared ObamaCare from a GOP challenge. The two decisions signaled the court may not be moving as far or as fast to the right as some expected.
“My guess is that he's frustrated with what appear to be political compromises to reach these results, and that he'd prefer the court, or at least his fellow conservatives, to be as full-throated dogmatic as he is,” said Steve Schwinn, a law professor at the University of Illinois at Chicago.
“We've seen flashes of this from him before,” Schwinn said, referring to the tone and tenor of Alito’s writing. “The only difference — if there is one — is that it's at a higher volume.”
The Supreme Court is nearing the end of its first term with former President Trump’s nominees comprising three of the nine justices, including its newest member, Amy Coney Barrett. The justices still have yet to decide eight cases, including a major voting rights dispute, which could produce a resounding win for conservatives — and next term could see watershed rulings for the right on everything from abortion to gun rights.
Yet so far, despite its 6-3 conservative majority, the court has charted an incremental course, falling short of the dramatic rightward tilt that hard-right conservatives had hoped for.
The court unanimously ruled last week that the city of Philadelphia ran afoul of religious protections when it cut ties with a Catholic adoption agency over its refusal to place foster children with gay and lesbian couples.
Although the ruling was a clear victory for religious rights advocates, the court stopped short of fundamentally reshaping its approach to religious liberty disputes, to the chagrin of the court’s staunchest conservatives.
Even some LGBT rights groups, while disappointed with the case's outcome, expressed relief that the majority kept the ruling relatively narrow in scope.
All nine members of the court agreed with the judgment, but several justices wrote separate concurring opinions, including a blistering 77-page screed by Alito.
Chief Justice John Roberts, writing for six members of the court, said that Philadelphia had violated the Catholic agency’s religious rights. But his ruling was modest and technical, rather than sweeping.
Alito blasted the majority for declining to replace the court’s landmark 1990 decision in Employment Division v. Smith with a more robust approach to religious liberty claims.
“After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” Alito wrote. “Those who count on this Court to stand up for the First Amendment have every right to be disappointed — as am I.”
Alito’s dissent was joined by two of the court’s most steadfast conservatives, Justices Clarence Thomas and Neil Gorsuch.
In a move that caught some court watchers by surprise, Barrett and Justice Brett Kavanaugh, a fellow Trump nominee, sided with Roberts over Alito’s view. But the pair did express openness to overturning Smith at some future point, as did liberal Justice Stephen Breyer.
“My sense is that Justice Alito is frustrated. He thought this term would bring strong reversals in several areas of the law,” said Josh Blackman, a professor at South Texas College of Law in Houston. “But, to his surprise, Justices Barrett and Kavanaugh are pumping the brakes with the Chief.”
In another ruling last week, the court preserved ObamaCare by dismissing the latest Republican challenge to the sweeping health care law.
Breyer, writing for the 7-2 majority, wrote that the GOP challengers lacked standing to sue, in a decision that marked the third major challenge to ObamaCare, or the Affordable Care Act (ACA), to be rebuffed by the Supreme Court in roughly a decade.
Alito, again mincing no words in his dissent, criticized the majority for preventing the plaintiffs from “even get[ting] a foot in the door to raise a constitutional challenge.”
Analysts also noted a thinly veiled swipe at Roberts in Alito’s dissent.
The chief justice was widely rebuked by conservatives in 2012 for joining the court’s four liberals to uphold the constitutionality of ObamaCare 5-4 in the National Federation of Independent Business v. Sebelius case.
Writing for the majority in that case, Roberts wrote that a provision of ObamaCare that imposed a penalty on most Americans who declined to purchase health insurance was a valid exercise of Congress’s taxing power.
Alito closed his dissent last week by accusing the court of continuing to craft novel rationales to preserve ObamaCare.
“No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats,” wrote Alito, who was joined by Gorsuch. “So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation’s history. Fans of judicial inventiveness will applaud once again.”
Author Rachel Bovard calls NCCA defense in Supreme Court case 'kind... A strong Voting Rights Act is needed now more than ever Alito also sided with the challengers in the two other major ObamaCare cases that previously reached the justices.
Schwinn, of the University of Illinois at Chicago, said that although Alito’s “lack of collegiality” is not new, its intensity in his ObamaCare dissent last week was nonetheless “striking, even shocking.”
“We've heard this kind of aggressive, even hostile, rhetoric from him before,” he said. “But this particular opinion takes it to a new level.”
“Six conservative justices” is BS. There are only two bona fide conservatives. That’s it. TWO.
Lot of blame for that to go around. But, a big chunk of it should be laid at the feet of the Federalist Society, which should probably more appropriately be named, ‘The Big Corporate Society.’
Uh, there’s only about 2.5 Conservative Justices on the Court.
That would make the court 3-1-2.5-2.5 or more properly 3-1-2-1-2..
Remember that most justices “mature” to the Left the longer they sit on their bums there.
Keeping my long-time vow is getting harder all the time. Long ago I decided I would not worry about SCOTUS or wish for anything from them. They are the final word in their field and that’s the way it is.
Upon seeing this article I had to grab my affirmation list and read this one 20 times:
“Like a mirror I reflect what comes into my life without judgment or opinion.”
I have two pages of affirmations and this one is by far the hardest to approach.
it’s the NWO Society
>> Barrett and Kavanaugh
Two capitulating jackasses.
Are you counting Barrett or Roberts as the .5?
Yes, it’s when we see the GOP in power is when we see there are different factions that all consider themselves right wing. On the court there are four streams.
*Elitism - deference to executive power and big corporations (Kavanaugh)
*Status Quo Conservatism - changing as little as possible with the court making vey narrow decisions (Roberts)
*Originalism - Interpreting the constitution as the founders saw it, but sometimes in a manner that will make conservatives unhappy (Gorsuch)
*Activist Conservatism - defaulting to the interpretation of a law that matches conservative principles (Alito)
“Conservative” voters have most of the blame.
Six conservative judges ?
Lot of blame for that to go around. But, a big chunk of it should be laid at the feet of the Federalist Society, which should probably more appropriately be named, ‘The Big Corporate Society.’
Now you are over the target. The way to influence these so-called conservative SCOTUS judges is to hit their benefactors. If that means conservatives not voting for Chamber of Chinese Commerce candidates so be it. Their voting will improve if they feel it is harming Corporate Anti America.
I’m grouping from left to right....
Alito gets overlooked but he has been an excellent judge.
I don’t think they are capituating. They aren’t anything different than advertised. They were Kennedy clerks, who were always going to be like Kennedy, and a little further to the left. They will probably be adjusting to the left over time.
Good categories. It’s probably too early to say where Barrett is, but I’m afraid she’s either in, or someplace in-between, the first and/or second category.
The California ban on ‘assault weapons’ will be an excellent gauge where she is....if the Roberts Court takes that case, which I’m sorry to say is FAR from certain.
Or 3-2-2-2
(Sotomayor, Kagan, Breyer) - (Gorsuch, Kavanaugh) - (Roberts, Coney Barrett) - (Alito, Thomas
Roberts tends to side with the left on big decisions, but is more like the conservatives he used to be before he reached the high court on smaller decisions.
In reality, it's probably unfair to judge Amy Coney Barret after half a year in the court. She did clerk for Scalia.
Gorsuch clerked for Kennedy, and they wer eon the court together for over a year, and Gorsuch was significantly to the left of Kennedy during that time.
Voters voted for these terrible judges. The Federalist Society shouldn’t have followed along with them, but they couldn’t have stopped it.
I am sure he truly misses Scalia.
Thanks. I also left Thomas out. With his years of experience he picks from the best of all the categories.
As an example, while I agree with Alito ideologically on everything, he is very willing to legislate from the bench. Thomas is more careful in believing that it is not their place to make new laws.
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