King Alito’s Arrogance Has Reached Frightening New Levels

Dahlia Lithwick and Mark Joseph Stern / Slate

As the Supreme Court careens toward the explosive end of its term, Justice Samuel Alito keeps digging himself deeper into an ethics scandal that is equal parts comical and execrable. Alito sent a letter to congressional Democrats on Wednesday resisting their calls for him to recuse from Jan. 6–related cases, once again blaming the presence of two insurrection flags flying over his homes on his wife, Martha-Ann. A day later, the court released several opinions, including a 6–3 death penalty case authored by Alito that took familiar liberties with the law and the facts. And just a few hours after that, Chief Justice John Roberts notified Senate Democrats that he would snub their request for a meeting about ethics, citing “separation of powers concerns and the importance of preserving judicial independence.”

On a bonus Slate Plus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed this unholy concatenation of court-related drama as SCOTUS itself rolls right off the rails. Their conversation has been edited for length and clarity.

To listen to the full episode of Amicus, join Slate Plus.

Dahlia Lithwick: I think the merits can get lost when we talk about the flags. But there is a substantive problem that we’re starting to pick up on, and that is Justice Alito, in recent weeks, making very real and serious errors in his opinions. They’re actually prompting corrections from sources that he cites, who say, “No, my work reflects the opposite of what you’re claiming.” I’d love for you to unpack that.

Mark Joseph Stern: This happened just last week in the racial gerrymandering case out of South Carolina. Alito cited the Brennan Center, a left-leaning pro-democracy group, to support the proposition that the racial turnout gap is growing—white people are voting at significantly higher rates than racial minorities. And Alito said this fact leads to the conclusion that racial data is actually less useful in drawing maps, so the court should assume that the map-drawers didn’t look at racial data, because it’s not very useful. Even though the map-drawers in this case shifted 30,000 Black residents to a new district with almost surgical precision to make a competitive district less diverse.

The Brennan Center responded that Alito completely misunderstood its work, and in fact got it backward. Bizarrely, he cited an old blog post rather than a more recent, comprehensive analysis of this issue, which would’ve shown why he was wrong. The Brennan Center said that what it actually showed was that South Carolina has better data, on the individual and community level, about racial identity than political affiliation. If Alito had read four more sentences of the blog post he cited, or read the full report that elaborates on this issue, he would have seen that the map-drawers in this case had every incentive to look at racial data! It’s clearer and more useful than data about voters’ political preferences. Alito just butchered the Brennan Center’s analysis and used it to mean the opposite of what it meant.

He received a similar rebuke from a source he cited in his dissent from the CFPB decision, too, right?

Yes. In his dissent asserting that the Consumer Financial Protection Bureau is funded unconstitutionally, Alito cited a book by Georgetown Law professor Josh Chafetz called Congress’s Constitution. Not once, not twice, but eight times. And it’s a very good book! But Alito cited it for the proposition that the Framers would never have wanted to let a federal agency draw its budget the way the CFPB does. And that the Framers and their English forebears would have wanted the judiciary to limit how Congress funds the executive branch.

Chafetz was so irritated by this that he felt moved to tweet that Alito got it dead wrong. Because Chafetz preemptively rebutted the theory that Alito embraced: In the book, he wrote that “text of the Constitution allows for indefinite appropriations in all contexts other than the army,” which is limited to two-year appropriations. That explicitly contradicts Alito’s pseudo-originalist claim. Also, Chafetz wrote about how the appropriations power was, early on, used in a broad and nonspecific way, which Alito deemed unconstitutional. And Chafetz wrote that this power was meant as a check on the executive by the legislative, not a judicially enforceable limit on Congress. Again, that’s the opposite of what Alito asserted. Yet the justice cited Chafetz’s book for support over and over again!

This dovetails with something we’ve talked about so much over the years, which is that the Supreme Court does not have an error-correction mechanism. It doesn’t have a roundup at the end of the week saying, “This is all the stuff that we got wrong in our opinions,” like Slate does. Once you put something false into an opinion, it becomes doctrine, and Alito is very good at this. Don’t forget, it was just last week that Justice Kagan had to tell Alito that he was misreading her own majority opinion. And there’s no corrective. It’s just choose-your-own-ending.

There’s another phenomenon, which is related but quite different: Alito seems to be substituting his own fact-finding for the work of the lower courts. We saw that again on Thursday.

This case, Thornell v. Jones, is about a man condemned to death by a judge on the basis of incomplete information: It looks like his counsel did not present all of the potentially mitigating evidence that might have led the judge to spare him from a capital sentence. And the 9th Circuit found ineffective assistance of counsel. The Supreme Court reversed in an opinion by—who else?—Alito. First, Alito said: We disagree with the 9th Circuit that this defendant had ineffective assistance of counsel. And that should have been the end of it.

Instead, Alito went a step further and did what the lower courts usually do, which is to re-weigh the evidence that could have been presented to the judge. He looked through thousands of pages of this very complex, highly contested record, purported to weigh the aggravating and mitigating circumstances, decided which were true and false, and drew his own conclusions. So, for instance, the defendant said he was sexually abused, and suffered brain trauma in early childhood, and experienced substance abuse and PTSD. But Alito dismissed these claims through his own appellate fact-finding, and declared that the defendant should, indeed, be sentenced to death.

As all three liberals said in their dissents, that is not what the Supreme Court is supposed to do. Yet it’s very similar to what happened in the racial gerrymandering case, where Alito looked at what the district court had found after a lengthy trial and hearing and rejected it point-by-point, saying I know better than you. This is King Alito declaring that he alone may speak the truth. What’s really alarming is that the other conservatives are going along with it. They just accept that King Alito can decree these new realities and facts and histories.

I would just add that this is entirely predictable from somebody who has proven, day after day after day, that he doesn’t believe reality. Justice Alito is at a place where he thinks the entire Justice Department is going after Trump and Jan. 6 insurrectionists because they’re witch-hunters. He believes the media is a bunch of liars and the world is out to get him. He believes the insurrectionist flag is benign, a foam finger that screams “Go George Washington.”

So yes, it’s entirely predictable that somebody like Alito would bend every single fact to conform with their own reality. That he would be the “I did my own research” justice. It’s really cognitively frightening, separate and aside from the politics of it. This is mistrust of every institution, materialized as a human being who decides the cases that control our lives.