Associate Justice Samuel Alito engaged in a number of discussions with Jan Crawford of CBS News as the new term of the Supreme Court was about to begin and as her book, So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, was set to hit shelves. Short video snippets from these conversations were released yesterday, as noted in earlier coverage.
An in-depth piece drawing on Crawford’s interviews and reporting has now appeared on CBSNews.com. The article highlights that Justice Alito is “one of the most influential Supreme Court justices of our era.” Crawford explains:
The Court today is often called the “Roberts Court”—a nod to Chief Justice John Roberts, who frequently leads the majority. Yet Alito often serves as the conservative backbone of the Court. For years, his stances on abortion, affirmative action, voting rights, and religious liberty have become controlling precedents. . . .
Among the nine justices, Alito has a knack for stitching together a five-vote majority on some of the Court’s most thorny and divisive questions. This includes crafting the 5-4 ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and returned the question of abortion policy to the states.
That may seem paradoxical: the justice who is frequently portrayed as rigid and uncompromising, off the bench, is, in fact, a conservative who excels at finding common ground on highly contentious issues.
That talent traces back to his upbringing and education in Hamilton Township: the focus, the meticulousness, a steady, understated leadership style, and an ability to survey the landscape and adjust to secure a favorable outcome.
Critics may view Justice Alito as driven by grievance and a conservative backlash. Crawford’s reporting suggests, instead, that he quietly wields considerable influence with his colleagues.
Beyond the Court’s walls, few appreciate the magnitude of Alito’s role. Building and preserving a coalition is the essence of the job. Liberal icon William Brennan used to remind jurists that knowing how to count to five is crucial, and he did so by cultivating coalitions through personal persuasion and strategic compromise.
Alito, reserved and unassuming, works very differently. His leverage does not come from a dominant personality but from his skill in threading a precise path and articulating the reasoning a majority can accept.
That capacity allows him to forge a consensus for opinions that steer the law as far as practicable at a given moment.
Yet while Justice Alito has effectively shaped majority opinions, he maintains that he has not sacrificed his core beliefs or endorsed reasoning he does not endorse.
“The paramount principle is fidelity to the Constitution. Reaching five votes matters, but it shouldn’t force you to embrace a rule you deem incorrect,” he noted. “I will never adopt a legal rule I find flawed, nor will I say something I disagree with. But there are ways to keep a majority intact without compromising those beliefs.” . . .
“I hold a theory about constitutional interpretation. I believe in a fixed meaning—one that remains what it was understood to be at the time of adoption. I will not abandon that,” he asserted. “However, in every case, it isn’t obligatory to push as far as one might personally prefer when drafting the opinion.”
Crawford’s perspective on the Court and on Alito’s part within it warrants attention. Her book, Supreme Conflict, chronicles the Roberts Court’s formation, and her reporting tends to shed more light on the current Court than that of some rivals. Notably, she was among the first reporters to recognize how Justice Thomas’s originalist approach was shaping the views of his colleagues, including the late Justice Scalia.
Alito’s interviews appear to have been conducted at length in his New Jersey hometown and at the Supreme Court. Topics ranged from his legal approach and decision-making style to retirement considerations and the leak of his draft Dobbs opinion.
Hearing during a collegial lunch that a draft opinion had leaked—a first in Court history—was a jarring moment for the justices, Alito said he was “stunned.”
“It was a real shock,” Alito recalled. “Yet soon the thought occurred to me, and likely to others in the majority, that this could endanger us. It made us targets for assassination.” . . .
The person responsible for the leak remains unidentified. After Politico’s May report, one theory suggested a Conservative insider leaked the draft to preserve five votes if any member of the majority wavered. Alito reacted with disbelief to that notion.
“It strains credulity to think any of us would have done such a thing, because it would put a target on our backs,” he said. “We were fortunate that the attempt to weaponize the scenario (against Kavanaugh) did not succeed.”
Crawford’s piece also contains fresh details. It notes that Justice Thomas favored pressing the Dobbs opinion to challenge other substantive due-process precedents, such as Obergefell, but that ambition lacked five votes. Obergefell—the Court’s decision requiring states to recognize same-sex marriages—faces no realistic prospect of being overturned, Alito told Crawford.
“I anticipated that the decision in Dobbs would be criticized not only for affecting Roe’s recognition of a right but also for potentially undermining other rulings—Obergefell and contraceptive decisions. Yet that prospect wasn’t realistic. I wanted to be clear about that.” . . .
“One key factor in deciding whether to revisit a past ruling is how much subsequent reliance there has been on that ruling,” he said. “Clearly, Obergefell had reshaped many aspects of the country in tangible ways.”
I reminded him that many people believed Roe v. Wade had settled the law of the land and structured lives around it. Reversing Roe would carry consequences.
According to him, Obergefell was a different matter altogether.
“After Obergefell, same-sex couples began marrying and entering into contracts… the impact was more concrete,” he explained. “With Roe, the debate was more about ideas and the broader vision of society women would inhabit; its effect was more abstract than what would come with overruling Obergefell.”
Alito also touched on ethics controversies, calls for recusal, and his wife’s penchant for flags.
“My wife decided to display a flag. I didn’t learn of it until a police officer mentioned it to me,” Alito said. “I asked her to take it down, and she did. But she’s an independent person and a private citizen with rights.”
I noted that some people found it puzzling why he didn’t insist she remove it at once.
“That isn’t how our relationship works. I do not possess the legal authority to dictate what she does with a jointly owned home,” he explained. “And I’m not the master of our household. That isn’t our dynamic, nor is it what I want.”
The piece contains much more, including Alito’s views on collegiality in the Court, his warm regard for Justice Breyer, and what his office reveals about him. The full article merits a read, and additional interview footage is slated to air on Monday.
