Justice Alito bristles at conservative Supreme Court’s incremental course

Justice Samuel Alito has drawn attention for his fiery criticism of Supreme Court rulings, with some court watchers especially struck by the degree of barely concealed hostility he directed at fellow conservative justices.

Alito voiced opposition last week as the court, now with six conservative justices and three liberals, handed a narrow win to a Catholic charity and spared ObamaCare from a GOP challenge. The two decisions signaled the court may not be moving as far or as fast to the right as some expected. 

“My guess is that he’s frustrated with what appear to be political compromises to reach these results, and that he’d prefer the court, or at least his fellow conservatives, to be as full-throated dogmatic as he is,” said Steve Schwinn, a law professor at the University of Illinois at Chicago. 

“We’ve seen flashes of this from him before,” Schwinn said, referring to the tone and tenor of Alito’s writing. “The only difference — if there is one — is that it’s at a higher volume.”

The Supreme Court is nearing the end of its first term with former President Trump’s nominees comprising three of the nine justices, including its newest member, Amy Coney Barrett. The justices still have yet to decide eight cases, including a major voting rights dispute, which could produce a resounding win for conservatives — and next term could see watershed rulings for the right on everything from abortion to gun rights. 

Yet so far, despite its 6-3 conservative majority, the court has charted an incremental course, falling short of the dramatic rightward tilt that hard-right conservatives had hoped for.

The court unanimously ruled last week that the city of Philadelphia ran afoul of religious protections when it cut ties with a Catholic adoption agency over its refusal to place foster children with gay and lesbian couples.

Although the ruling was a clear victory for religious rights advocates, the court stopped short of fundamentally reshaping its approach to religious liberty disputes, to the chagrin of the court’s staunchest conservatives.

Even some LGBT rights groups, while disappointed with the case’s outcome, expressed relief that the majority kept the ruling relatively narrow in scope.

All nine members of the court agreed with the judgment, but several justices wrote separate concurring opinions, including a blistering 77-page screed by Alito.

Chief Justice John Roberts, writing for six members of the court, said that Philadelphia had violated the Catholic agency’s religious rights. But his ruling was modest and technical, rather than sweeping.

Alito blasted the majority for declining to replace the court’s landmark 1990 decision in Employment Division v. Smith with a more robust approach to religious liberty claims.

“After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” Alito wrote. “Those who count on this Court to stand up for the First Amendment have every right to be disappointed — as am I.”

Alito’s dissent was joined by two of the court’s most steadfast conservatives, Justices Clarence Thomas and Neil Gorsuch. 

In a move that caught some court watchers by surprise, Barrett and Justice Brett Kavanaugh, a fellow Trump nominee, sided with Roberts over Alito’s view. But the pair did express openness to overturning Smith at some future point, as did liberal Justice Stephen Breyer. 

“My sense is that Justice Alito is frustrated. He thought this term would bring strong reversals in several areas of the law,” said Josh Blackman, a professor at South Texas College of Law in Houston. “But, to his surprise, Justices Barrett and Kavanaugh are pumping the brakes with the Chief.”

In another ruling last week, the court preserved ObamaCare by dismissing the latest Republican challenge to the sweeping health care law. 

Breyer, writing for the 7-2 majority, wrote that the GOP challengers lacked standing to sue, in a decision that marked the third major challenge to ObamaCare, or the Affordable Care Act (ACA), to be rebuffed by the Supreme Court in roughly a decade.

Alito, again mincing no words in his dissent, criticized the majority for preventing the plaintiffs from “even get[ting] a foot in the door to raise a constitutional challenge.”

Analysts also noted a thinly veiled swipe at Roberts in Alito’s dissent. 

The chief justice was widely rebuked by conservatives in 2012 for joining the court’s four liberals to uphold the constitutionality of ObamaCare 5-4 in the National Federation of Independent Business v. Sebelius case.

Writing for the majority in that case, Roberts wrote that a provision of ObamaCare that imposed a penalty on most Americans who declined to purchase health insurance was a valid exercise of Congress’s taxing power. 

Alito closed his dissent last week by accusing the court of continuing to craft novel rationales to preserve ObamaCare.

“No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats,” wrote Alito, who was joined by Gorsuch. “So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation’s history. Fans of judicial inventiveness will applaud once again.”

Alito also sided with the challengers in the two other major ObamaCare cases that previously reached the justices.

Schwinn, of the University of Illinois at Chicago, said that although Alito’s “lack of collegiality” is not new, its intensity in his ObamaCare dissent last week was nonetheless “striking, even shocking.”

“We’ve heard this kind of aggressive, even hostile, rhetoric from him before,” he said. “But this particular opinion takes it to a new level.”