How Alito Paved the Way for the Trump MESS
Quick Read
Summary
Takeaways
- ❖Samuel Alito's early career was marked by bipartisan acceptance despite his "edgy conservative ideas" developed within the Reagan Justice Department.
- ❖Alito was present at the creation of the Federalist Society, which grew from informal meetings into a dominant force in Republican judicial nominations.
- ❖The conservative revolt against Harriet Miers' Supreme Court nomination was a pivotal moment, demonstrating the Federalist Society's power and clearing Alito's path.
- ❖During his confirmation, Alito employed "verbal trickery" regarding the right to privacy, appearing to accept it while holding a far more limited interpretation.
- ❖Alito's judicial legacy includes authoring the Dobbs decision (overturning Roe v. Wade), expanding presidential immunity, and activating the free exercise of religion clause.
- ❖Recent controversies surrounding Alito are viewed as a product of his conservative ecosystem, personal feelings of being under attack, and a tendency for older justices to become less restrained.
Insights
1Alito's Bipartisan Ascent Despite Conservative Agenda
Despite advancing "edgy conservative, ultra-conservative ideas" within the Reagan Justice Department, Samuel Alito gained bipartisan support for his early judicial appointments. His shy, quiet demeanor led many to perceive him as a 'lawyer's lawyer,' allowing him to secure endorsements from Democrats like Bill Bradley and Frank Lautenberg for his US Attorney and Third Circuit appointments.
He won bipartisan support, with Democrats Bill Bradley and Frank Lautenberg preferring Alito for US Attorney due to his 'pure prosecutor' image. He was later confirmed unanimously to the Third Circuit.
2The Federalist Society's Strategic Rise
Alito was an early participant in the Federalist Society, which began as informal gatherings in Chinese restaurants. This group provided a 'separate track' for conservatives who felt at odds with the liberal academic establishment, offering a platform for professional approval and networking. It evolved into a powerful 'counter-establishment' that eventually dictated Republican judicial nominations.
Alito was 'present at the creation' of the Federalist Society's early meetings in Washington. The society became a place where conservatives could 'show their stuff, win support, get some of the sort of professional approval that they felt was denied them precisely because they were conservatives.'
3The Conservative Revolt Against Harriet Miers
President George W. Bush's nomination of Harriet Miers to the Supreme Court triggered a significant 'conservative revolt.' The Federalist Society and other conservative figures, who had previously supported Bush, actively blocked Miers' nomination, viewing her as unqualified and not sufficiently conservative. This demonstrated their immense power and effectively forced Bush to nominate a more ideologically aligned candidate.
Bush nominated his White House legal counsel, Harriet Miers, but the 'Chinese restaurant crowd' of the Federalist Society 'emerged to block the nomination.' Figures like Randy Barnett, David Frum, and George Will spoke out strongly against her, discrediting her as a lawyer.
4Alito's Confirmation Strategy and 'Verbal Trickery'
During his Senate confirmation hearings, Alito used 'verbal trickery' regarding the right to privacy. He privately assured senators like Ted Kennedy that he recognized a right to privacy and considered it 'settled,' which in common parlance implied support for Roe v. Wade. However, his later judicial interpretations revealed a far more limited view of privacy, restricting it to traditions existing when the 14th Amendment was created, explicitly excluding abortion.
Ted Kennedy's diary noted Alito stating, 'I recognize there's a right to privacy. I think it's settled.' However, Alito later clarified his view that privacy only includes 'traditions up to and when the 14th Amendment was created,' a 'very limited roster of things' that does not include abortion.
5Alito's Core Judicial Legacies: Roe, Immunity, and Religious Freedom
Justice Alito's most prominent legacies include authoring the Dobbs decision, which overturned Roe v. Wade, a culmination of decades of conservative legal effort. He also played a central role in expanding presidential immunity and has been the primary driver behind 'activating the free exercise of religion clause,' pushing for religious exemptions even when laws are neutrally applied, potentially allowing individuals to disobey statutes based on religious principles.
The rejection of Roe v. Wade is 'the high watermark of the conservative movement,' with Alito authoring the Dobbs decision. He 'strongly endorsed' the presidential immunity decision. His 'real place where his legacy is going to be most discussed' is 'the activating of the free exercise of religion clause,' moving beyond neutrality to strongly defend religious practices.
6Controversies as a Product of Alito's Ecosystem
Recent controversies surrounding Justice Alito, such as luxury trips from Republican donors, alleged leaks, and displaying 'pro-insurrection flags,' are framed as 'self-inflicted wounds' stemming from his deep immersion in a conservative ecosystem. This environment, coupled with perceived attacks and the influence of his wife, has led him to become 'less restrained' and potentially 'blinded to the implications' of his actions, believing they are not corrupting.
Controversies include a luxury fishing trip paid for by a Republican donor, questions about leaking the Dobbs decision, and flying 'pro-insurrection flags.' Alito 'lives in a very much a conservative ecosystem that demonizes liberals' and his wife 'encourages him in some of these feelings.' He 'genuinely doesn't believe that it's corrupting to them.'
Lessons
- Recognize that judicial appointments are the result of long-term, organized strategic efforts, not just individual merit, as exemplified by the Federalist Society's influence.
- Scrutinize the language used by judicial nominees during confirmation hearings, particularly regarding 'settled law' or 'privacy rights,' as their interpretations can be far more limited than commonly understood.
- Understand that judicial philosophies like 'originalism' can be selectively applied or interpreted to align with pre-existing ideological preferences, as seen in decisions on gun rights or presidential immunity.
- Be aware that the 'ecosystem' surrounding a justice, including their clerks, social circles, and media consumption, can significantly influence their judicial outlook and personal conduct.
Quotes
"They felt like they were there at the creation of something. You know, it was the the fact that they were in this Chinese restaurant in somewhat shabby condition, you know, attested to their uh their belief in what they were doing."
"The Federalist Society not only became uh you know an ideological kind of melting pot on the right... it also becomes like a networking you know and professional setting."
"Conservatives do not acknowledge that it is they who's politicized it."
"The rejection of Roie Wade is the high watermark of the conservative movement. This is what they had organized against. It's the great white whale that the conservative legal movement had."
"Alto strongly believes that, you know, the right to free exercise of religion essentially is a, you know, a partner to the equal protection clause. It's something that the courts should be enforcing legally and strongly defending even beyond that test of neutrality."
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