The U.S. Supreme Court dashed off a breif, September 1st order allowing the patently unconstitutional Texas abortion ban to stand until a case reached it challenging the law’s controversial private bounty hunter enforcement mechanism. Standout among the action’s critics was The Atlantic‘s Adam Sewer, a Texas resident.
In his Sept. 2 takedown of court conservatives’ use of the “shadow docket,” Serwer wrote:
The shadow docket has begun to look less like a place for emergency cases than one where the Republican-appointed justices can implement their preferred policies without having to go through the tedious formalities of following legal procedure, developing arguments consistent with precedent, or withstanding public scrutiny. And so after initially allowing the Texas law banning abortion before most women know they are actually pregnant to go into effect, five conservative justices told Republican-controlled states they could disregard Roe while insisting that wasn’t what they were doing at all.
Justice Samuel Alito was not amused. He fired back at Serwer’s article, quoting from it in a Sept. 30 speech at Notre Dame, calling it “false and inflammatory” to suggest say that, in effect, the court’s action allowed Texas to nullify Roe v. Wade in Texas without judicial review. That would come once the case reaches his court again. Meantime, ladies, good luck.
On Tuesday, Serwer thanked Alito for proving his point about the court’s political slant. A sample:
The rank dishonesty and arrogance of Alito’s speech at Notre Dame are symptoms of the conservative majority’s unchecked power on the Court, and the entitlement that flows from having no one around you who can tell you what you sound like. It is not simply enough for the right-wing justices to have this power; Alito insists that the peasantry be silent about how they use it, and acquiesce not only to their delusions of impartiality but to their mischaracterization of verifiable facts. These are imperious demands for submission from someone who is meant to be a public servant.
I understand the value of pursuing impartiality as a judge—there is a similar case made in journalism for pursuing objectivity. Even if humans are incapable of being impartial or objective, the thinking goes, they should try. But it is one thing to pursue impartiality or objectivity in good faith, and another to use those concepts in the defense of ideologically motivated conclusions. Alito’s approach to the law, and to criticism of the Court, is an example of the latter.
The justices’ claims to be apolitical are belied by the decades of advocacy by the conservative legal movement and oceans of cash that it has spent to put them on the Court. They are belied by the trajectory of their own careers, which they pursued with the desperate ambition of being elevated to the Court. And they are belied by their own actions on the Court, despite their insincere, performative testimonies about judicial restraint.
“Judges turning into political actors, giving speeches attacking journalists, is terrible for the court and terrible for democracy,” tweeted Connecticut Democrat, Sen. Chris Murphy in response to the Alito speech.
Steve Benen concurred:
It was, after all, just last fall when Alito delivered surprisingly political remarks at a Federalist Society event, at which the conservative complained about public-safety restrictions during the pandemic, before directing his frustrations at marriage equality, reproductive rights, and five sitting U.S. senators, each of whom happen to be Democrats.
“This speech is like I woke up from a vampire dream,” University of Baltimore law professor and former federal prosecutor Kim Wehle wrote soon after. “Unscrupulously biased, political, and even angry. I can’t imagine why Alito did this publicly. Totally inappropriate and damaging to the Supreme Court.”
Yet here we are, with democracy hanging in the balance and the courts stacked with Federalist Society judges.