A Conversation with “One of the Most Influential Supreme Court Justices of Our Time”

Associate Justice Samuel Alito sat down for multiple interviews with Jan Crawford of CBS News in advance of the opening of the Supreme Court’s term and the release of his book, So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country.  Video clips from the interviews were released yesterday, as I noted here.

An extensive article based upon the interviews, and Crawford’s reporting, is now up on CBSNews.com. It notes that Justice Alito is “one of the most influential Supreme Court justices of our time.” Crawford writes:

The current Supreme Court is referred to as the “Roberts Court,” after Chief Justice John Roberts, and Roberts is typically the justice most often in the majority. But Alito is in many ways the Court’s conservative leader. His legal positions going back years on abortion, affirmative action, voting rights and religious liberty now are law of the land. . . .

Among the nine, Alito is especially skilled in bringing together five justices for a majority on some of the Court’s most difficult and contentious issues. That includes his 5-4 majority decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and sent the issue of abortion back to the states.

That may seem a contradiction: The justice often publicly portrayed as unyielding and inflexible is, behind the scenes, the conservative who is uniquely adept at finding common ground on the most divisive issues.

It’s a skill formed on the fields and classrooms of Hamilton Township: His focus and attention to detail, his loyalty, his quiet leadership style, and his ability to survey the playing field and adjust, all to make the winning play.

Justice Alito’s critics may think he is motivated by grievance and conservative resentment. What Crawford’s reporting reveals is that Justice Alito is quietly effective with his colleagues.

Outside the Court, few understand Alito’s powerful role within it. Assembling and keeping together a majority is the whole ball game. Liberal icon William Brennan used to say the most important thing for a Supreme Court justice to know is how to count to five, and he was able to build coalitions with his legendary gift of personal persuasion and strategic compromise.

Alito, reserved and unassuming, has a very different approach. His influence is not through force of personality, but in his ability to thread the needle and find the rationale a majority will agree with.

Those skills allow him to forge consensus for an opinion that moves the law as far as is practicable at the time.

But while Justice Alito has been quite effective at crafting majority opinions that hold five votes, he does not believe he has had to compromise his principles or embrace reasoning he does not embrace.

“The most important thing to know is to be true to the Constitution. Getting to five is important. But you should not try to get a majority opinion if that means sacrificing something that is important,” he said. “I will never adopt a legal rule that I think is wrong, or say something that I think is wrong. But without doing that, there are ways of trying to keep a majority together.” . . .

“I have a theory about how the Constitution should be interpreted. I believe it has a fixed meaning. And it still means today what it was understood to mean when it was adopted. And I will not depart from that,” he said. “But it is not necessary in every case to go as far as one might want to go if you were just writing the opinion for yourself.”

Crawford’s take on the Court, and Justice Alito’s role within it, is worth heeding. Her book, Supreme Conflict, chronicled the making of the Roberts Court, and her reporting tends to carry more insight into the current Court than that of her competitors. Among other things, she was the first reporter to grasp how much Justice Thomas’s commitment to originalist jurisprudence was influencing his colleagues, including the late Justice Scalia.

Justice Alito apparently sat for several hours of interviews in his New Jersey hometown and at the Supreme Court. Among the subjects discussed were his approach to the law, his decision-making, whether he thinks about retirement, and the leak of his draft Dobbs opinion.

Hearing during a collegial lunch that a draft opinion had leaked for the first time in Court history was difficult for the justices to process. Alito said he was “stunned.”

“It was quite a shock,” Alito said. “But within a relatively short period of time, the thought occurred to me, and I think to the others in the majority, that this would endanger us. And it made us targets for assassination.” . . .

The leaker remains unknown. After Politico published its piece in early May, one theory was that a conservative had leaked the draft to keep the five votes in place, in case any of the justices in the majority were wavering. Alito was almost incredulous at the suggestion.

“It’s implausible that any of us would have done that for exactly the reason I’ve mentioned, because this pinned a target on our backs,” Alito said. “And it was very fortunate that that planned attack (on Kavanaugh) was not successful.”

Crawford’s story also has some reveals. It notes that Justice Thomas wanted the Dobbs opinion to question other substantive due process precedents, such as Obergefell, but that view could not command five votes. Obergefell, the Court’s decision requiring states to recognize same-sex marriage, is not at risk. There is “not a realistic prospect” Obergefell could be overruled, Alito told Crawford.

“I knew that the decision in Dobbs would be attacked on the grounds that this is a terrible decision not only because of what it says about the right that was identified in Roe, but also because it will mean that these other decisions — Obergefell and contraceptive decisions — are also going to be potentially overruled. And that was not a realistic prospect. And I wanted to lay that out.” . . .

“One of the important factors we take into account in deciding whether we should reexamine a past decision is the degree to which there has been reliance on the decision,” he said. “Obviously a great deal had changed in the country as a result of Obergefell. There was a lot of reliance in various ways on the decision in Obergefell.”

I pointed out that people thought Roe v. Wade was settled law of the land, had organized their lives around it. Overturning Roe also would have consequences.

Obergefell, he said, was different.

“After Obergefell, people of the same sex got married and entered into contracts … it was much more concrete,” he said. “Whereas with Roe, the argument was made that it had an effect on people’s ideas, women’s ideas about the kind of society that they were going to live in, that this would have an effect on the society. It was much more abstract than what would’ve been involved had we been asked to overrule Obergefell.”

Alito also discussed ethics controversies, calls for his recusal, and his wife’s fondness for flags.

“My wife decided to fly a flag. I wasn’t even aware of what she was doing until one of our police officers informed me,” Alito told me. “And I asked her to take it down. And she did eventually. But she’s a very independent person. And she’s a private citizen. And she has her rights.”

I said it was hard for some to understand why he didn’t insist she take it down immediately.

“That’s not the nature of our relationship. I don’t actually have the legal right to tell her what to do with a home that we own jointly,” he said. “Plus I am not the lord and master of our household. That’s not our relationship, and it’s not the one that I want.”

There’s lots more in the story, including Justice Alito’s thoughts on collegiality on the Court, his fondness for Justice Breyer, and what his office reveals about him. The full article is worth a read. More video from the interviews will air Monday.