Corporate Accountability

Is This Alito’s Court Now?

By Bill Blum


Who is the most conservative justice on the Supreme Court?


If you’re tempted to answer Antonin Scalia for his unhinged rants against “racial entitlements,” homosexuality and gay marriage, or Clarence Thomas for his silent but deadly opposition to all manner of social and economic reform dating back to the New Deal, or Chief Justice John Roberts for writing the Shelby County v. Holder opinion that gutted the Voting Rights Act, I have two words for you to consider: Samuel Alito. 


Since his 2006 confirmation as an associate justice, Alito has grown from a junior crony to a prime driver of the court’s increasingly ideological agenda. Any questions about his ascension were laid to rest a year ago June on the final day of the 2013 term, when he read his 5-4 majority opinions in Burwell v. Hobby Lobby Stores and Harris v. Quinn from the bench.


Both decisions embodied the most extreme forms of reckless and regressive judicial activism. Hobby Lobby not only established the religious personhood of closely held corporations, but upheld their faith-based right to deny female employees health insurance coverage for contraception. Quinn dealt a body blow to public employee unions, holding that the First Amendment right to freedom of association prohibits the collection of agency “fair-share” fees from government workers who elect not to join unions that nonetheless negotiate on their behalf.


I called attention to Alito’s mean-spirited zealotry in a Truthdig column posted in November 2012 titled “Alito Rising: What to Expect From the Supreme Court’s New Alpha Conservative.” In it, I noted Alito’s longstanding and continuing membership in the Federalist Society, his fundraising efforts on behalf of right-wing groups like the Intercollegiate Studies Institute, as well as his early voting record on the court.


Among his initial deliberations, Alito wrote the 2007 majority opinion in the Lilly Ledbetter case, barring gender-based pay discrimination complaints under the 1964 Civil Rights Act if the claims were 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.)


The following year, he joined a concurring opinion written by Scalia, enthusiastically endorsing Indiana’s voted ID law. And in 2009, he joined Scalia again, this time dissenting in a case (Harbison v. Bell) that granted indigent death row inmates the right to federally appointed counsel in state clemency proceedings when states decline to provide lawyers. 


Consolidating his position as a central player in the tribunal’s conservative bloc, Alito voted in January 2010 to reverse decades of post-Watergate campaign finance law in Citizens United. Within a week of the decision’s release, he was famously caught on national TV sneering during Obama’s State of the Union address, mouthing the words “not true” as the president decried the ruling and the effect it would have on elections.


Alito’s pique in open defiance of the nation’s first black president made him a tea party darling. It also marked the end of his high court apprenticeship. No longer consigned to a supporting role, in March 2010 he penned the majority opinion in McDonald v. Chicago, holding that the individual right to bear arms under the Second Amendment—recognized at the federal level two years earlier in Heller v. District of Columbia—applied directly to the states. 


From there, Alito’s rightward trajectory rarely veered off course, as he voted with the minority to overturn Obamacare’s individual mandate and with the majority to dismantle core protections of the Voting Rights Act. He also drafted the majority opinion in Clapper v. Amnesty International, denying standing to public interest groups suing the NSA, and crafted a breathtakingly arrogant dissent in United States v. Windsor, seeking to uphold the Defense of Marriage Act.


And lest anyone forget that he was still an “asshole”—as The Nation’s Reed Richardson described him for his pro-DOMA rant—Alito rolled his eyes in contempt when Justice Ruth Bader Ginsburg read her dissents in two employment discrimination cases during a public court session in June 2013. Alito wrote the majority opinion in one of the cases (Vance v. Ball State University), narrowing the definition of who can be considered an employee’s “supervisor” and thus making it more difficult for workers to sue for sexual harassment.


Experts who keep tabs on the political leanings of Supreme Court justices in mathematical databases also agree on Alito’s cutting-edge conservatism. According to a comprehensive study published by the University of Minnesota Law Review, Alito is the most pro-business justice to have served on the Supreme Court since the end of World War II, with Roberts taking the runner-up slot. The Constitutional Accountability Center, which measures ideology in line with how the justices vote in cases involving the U.S. Chamber of Commerce, similarly ranks Alito as the court’s top conservative, followed by Thomas.


Perhaps the greatest irony when it comes to assessing Alito’s body of work on the Supreme Court is that we all saw him coming when George W. Bush nominated him to replace Sandra Day O’Connor. We were well warned.


The ACLU, citing Alito’s “troubling decisions [as a federal appellate judge] on race, religion and reproductive rights,” vigorously contested his nomination, marking only the third time (the others being William Rehnquist and Robert Bork) it had opposed a high court nominee in its long history. Other progressive groups resistant to Alito cited his membership in a since-disbanded all-male, racially exclusive organization—Concerned Alumni of Princeton—that had been founded in reaction to the Ivy League university’s admission of women and greater numbers of minority students. Still, Alito was confirmed by a final Senate vote of 58 to 42.


Before the court’s current term ends in June, Alito will get many more opportunities to remold the nation’s legal landscape, including a chance to invalidate Obamacare’s critically important federally run insurance exchanges. At age 64, Alito is the second youngest conservative on the court, after Roberts. For all the harm he has done in high office to date, he’s really only just getting started.