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When the U.S. Supreme Court handed down its ruling in Dobbs v. Jackson Women’s Health Organization, and overturned Roe v. Wade, the progressive dissenters wrote that the decision “undermines the Court’s legitimacy.” In September, Justice Elana Kagan, one of the co-authors of the dissent, echoed the point.
“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem,” Kagan said during remarks at Northwestern University School of Law.
Justice Samuel Alito, the author of the Dobbs ruling, told The Wall Street Journal such criticism “crosses an important line.” This week, as The Washington Post reported, the conservative jurist continued to push back and defend the high court.
When asked about criticism that the court has strayed too far from public sentiment and risks appearing partisan when it overturns precedent, Alito said he has no problem with the public, the media and academics criticizing the court’s legal reasoning in its rulings. But he took issue with those who have questioned the legitimacy of the court. “To say that the court is exhibiting a lack of integrity is something quite different. That goes to character, not to a disagreement with the result or the reasoning. It goes to character,” Alito said.
The justice added, “Someone also crosses an important line when they say that the court is acting in a way that is illegitimate. I don’t think anybody in a position of authority should make that claim lightly. That’s not just ordinary criticism. That’s something very different.”
He didn’t reference Kagan by name, but given the larger context, it seems quite likely she was the person “in a position of authority” he was referring to.
To be sure, during his public appearance on Tuesday, Alito addressed several other important subjects, including alleged assassination threats and the leak of his draft Dobbs ruling, which are clearly important in their own right.
But it was his ongoing defense of the Supreme Court at an institutional level that stood out —largely because Alito’s argument was, and is, wildly unpersuasive.
Circling back to our earlier coverage, part of the problem is the underlying ambiguity in Alito’s pitch. The conservative apparently believes Kagan and others have crossed “an important line,” though I’d love to hear more about what exactly Alito sees as the appropriate consequence. Is he of the opinion that people are free to disagree with the high court, but not question its legitimacy?
What’s more, Alito hasn’t exactly presented a meaningful defense of the institution, per se. In fact, his pitch barely constitutes an argument at all. To hear the far-right justice tell it, the Supreme Court’s integrity and legitimacy should be seen as beyond reproach because, well, just because.
But in this instance, the timing and location of Alito’s comments were relevant, too: His remarks on Tuesday were delivered at the Heritage Foundation.
In other words, one of the Supreme Court’s most conservative members thought it’d be a good idea to defend his institution’s reputation at an organization that’s been credibly accused of putting partisanship over policy and going to embarrassing lengths to stay in Donald Trump’s good graces.
Indeed, Fox News recently reported that the political arm of the larger Heritage enterprise is investing millions of dollars to support Republican candidates in this year's midterm elections.
The result was an unflattering picture: Alito, in the wake of a series of overtly political speeches, tried to defend the Supreme Court’s credibility at a pro-Trump organization, exactly two weeks before the midterm elections, with early voting underway.
Alito is of the opinion that the court’s critics have crossed “an important line.” But in reality, if anyone’s gone too far in an irresponsible direction, it’s Alito.