Alito's intellectual honesty
Saturday, June 1, 2024
I’m in a weird headspace about the Supreme Court’s right wing wearing their partiality on their sleeves. I’m supposed to be mad about it, like lots of liberals. But I think it’s a kind of honesty and, in its hubris, exposes the vulnerabilities of the right’s more longterm jurisprudential projects.
(Takes a deep breath, hopes people read all the way through, or at least halfway through…)
Obviously, I’m talking about the most recent example, reported by Jodi Kantor at The New York Times:
Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Justice Alito’s impartiality in cases related to the election and the Capitol riot.
There have been several developments since I first started writing this post in mid-May when the upside flag story first broke. None of those developments changes my perspective. In fact, they all reinforce it. Anyway, to catch up and stay caught up on the Alito/flags stuff and all else SCOTUS, I recommend reading the work of John Fritze at CNN, Chris Geidner’s Law Dork, and the SCOTUS team at Slate.
I’m not as worked up about this one because it doesn’t involve direct or indirect financial incentives, or a spouse inserting themselves, however superfluously, into schemes resembling a coup. And it shouldn’t change the assumptions of anyone who has been paying attention to Alito for the past many years. Yes, it’s infuriating and concerning and beyond anything I would hope for our highest court. But it’s not a surprise.
Of course, I don’t believe he didn’t know about the flag hanging outside his house, or its meaning as a sign of solidarity with “stop the steal” whackos, and of course, blaming your spouse in the national press is… a choice, and of course “my neighbors were teasing me first” isn’t an appropriate reaction for a Supreme Court justice to the political speech of his neighbors, however performative and counterproductive that speech may be.
But the handwringing over this flag episode is based on the idea that anyone paying attention could take seriously the proposition that Alito lacks bias or could possibly be impartial in cases related to the election and the Capitol riot, or really any issue of importance to, eh, people of his political ilk. Impartial people, and people worried about at least appearing impartial, do not give the keynote speech at Federalist Society conventions.
(Nor do they inveigh wholeheartedly against a Constitution protective of the rights of all Americans, but that is beyond the scope of this post…)
Usually, this is where I would admit my own outsize portion of cynicism, and caution Dear Readers to consider this screed in that light, but this time I do the opposite: the fact is, the suggestion that Alito has any impartiality to preserve is, at this point, blatantly dishonest or an inadvertent admission of naïveté. As just one recent example, he openly treats the First Amendment as if it applies to conduct by private companies moderating their users' speech (it does not) and then has to be called out on it by Justice Kavanaugh.
Next, I’m going to say something (else?) people may not like, and that I may regret someday:
I actually appreciate Alito’s intellectual honesty, though query whether it’s deliberate or the result of too much rhetorical laziness to be more insidious about his intentions. Because there are more measured, insidious ways to drag the nation backward, under the guise of faith to the Constitution qua “history and tradition”, as close as posible to a time when people who looked like Alito, and me, for that matter, held all the power, and there was no immediate risk of having to share it.
History and tradition, indeed.