Justice Alito lashes out at a journalist's criticism as 'ridiculous'

U.S. Supreme Court Justice Samuel Alito singled out a specific journalist for criticism on Thursday during a defensive speech at the University of Notre Dame. He used the event to respond to growing outrage about the court's use of the "shadow docket," in which it weighs in on ongoing cases without oral arguments or extended opinions.

Adam Serwer of the Atlantic has been among those to recently call out the court's increasingly aggressive use of the shadow docket. Writing about its recent decision to allow a Texas law banning abortions after 6 weeks of pregnancy to go into effect, Serwer wrote: "The conservative majority on the Supreme Court was so eager to nullify Roe v. Wade, the 1973 precedent securing the right to abortion, that it didn't even wait for oral arguments."

Without naming Serwer or the Atlantic, Alito latched on to this quotation and attempted to refute it.

"Put aside the false and inflammatory claim that we nullified Roe v. Wade," Alito said. "We did no such thing, and we said that expressly in our order. I quote: 'The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. ... this order is not based on any conclusion about the constitutionality of Texas's law...'"

He continued: "So, the statement is flatly wrong, and the suggestion that we should've held oral argument is ridiculous."

Alito's response is wholly unresponsive to Serwer's actual claim. First, most clearly, Serwer did not suggest that the justices should've held oral argument before issuing their order. His point, quite obviously, is that at the very least the court should wait to hold oral arguments and before doing something as upending precedent on abortion law. That's what the court did by allowing the Texas ban to go into effect based on a technicality, even though there were clear immediate harms caused by the obviously unconstitutional law. Alito's cheap shot here shows either a lack of interest in taking criticism seriously or poor critical reading skills, neither of which are qualities one would hope to see in a Supreme Court justice.

More to the point, though, Alito's claim that the court didn't nullify Roe v. Wade because it didn't address the constitutionality of abortion bans doesn't hold up either. If Serwer had claimed that the court had overturned Roe, Alito would arguably be right on a technicality. But nullifying isn't the same as formally overturning precedent. Serwer's point is that the court effectively rendered Roe's protections void in Texas, which is undoubtedly true. The Texas ban, which clearly flies in the face of Roe, is in force and is in fact impeding the ability of women to get abortions. That's what it means for the protection of a legal right to be nullified.

Alito's argument that the majority in the Texas case claimed it wasn't making a decision on the constitutionality of the law doesn't change the fact that rights have been nullified. And the claim that the decision was solely based on the technical aspects of the law, and not the justices' beliefs about the merits of case, doesn't pass the laugh test. There's no serious doubt that the court would've acted differently if, for example, Massachusetts had used a similarly structured law to ban gun ownership.

Serwer, responding to Alito, noted that the justice's comments offered more evidence for an argument he made in a separate article.

In that piece, Serwer wrote:

The current makeup of the Roberts Court is itself the outcome of a partisan battle that has spanned decades, one in which the conservative legal movement has won a tremendous victory that is certain to shape American life for generations to come. Anticipating their future triumphs, though, the very justices championed by this movement have taken to denying both this victory and its implications, insisting that this casino is resolutely opposed to gambling—in fact, it's not a casino; it's a church, and its critics are engaging in acts of civil blasphemy. With absolute control of the Court, the conservative legal movement's main obstacle is the fact that its extreme views are unpopular. When those views are imposed on the public in the future, the justices want to be able to claim that their decisions are the result of impartial legal reasoning, rather than motivated reasoning by committed right-wing ideologues. But that doesn't make the proposition that the justices are free of partisanship any less ridiculous.