'It is statistical fact': A journalist fires back after Justice Alito singled him out for criticism

U.S. Supreme Court Justice Samuel Alito, nominated by President George W. Bush in 2005, recently complained that those who view the High Court as overly politicized are wrong — and he cited journalist Adam Serwer as an example of someone who is promoting that wrong-headed view. But Serwer, in an article published by The Atlantic this week, argues that Alito only succeeded in proving his point.

The 71-year-old Alito, during a speech at Notre Dame University in September, took issue with those who view the Supreme Court as "a dangerous cabal" that is "deciding important issues in a novel, secretive, improper way, in the middle of the night, hidden from public view." And Alito claimed that it was "false and inflammatory" for Serwer to have said that the Roe v. Wade decision had been nullified by Texas' new anti-abortion law, which the court allowed to go into effect — much to the disappointment of the law's critics.

"Alito's speech perfectly encapsulated the new imperious attitude of the Court's right-wing majority, which wants to act politically without being seen as political, and expects the public to silently acquiesce to its every directive without scrutiny, criticism or protest," Serwer writes. "As if oblivious to the irony, Alito's office set ground rules barring media outlets from transcribing or broadcasting in full the speech at the University of Notre Dame, in which he delivered his complaint."

The Supreme Court's decision to let the Texas law stand — at least for now — appeared on its "shadow docket," which Serwer describes as "the emergency orders that the Court issues outside the regular process of review with limited briefing and without oral arguments — and thus, without the typical degree of attention from the public or the justices themselves."

Alito, during his Notre Dame speech, objected to the media's use of the term "shadow docket." But Serwer argues that Alito has no one but himself to blame for the term's "negative connotations."

"The term shadow docket was coined by a former (Chief Justice John) Roberts clerk six years ago; it is not an invention of Alito's Lügenpresse," Serwer notes. "The negative connotations it has more recently assumed are entirely a product of the Court's selective use of the mechanism to make sweeping decisions and deliver rapid victories to right-wing causes."

Serwer compares part of Alito's Notre Dame speech to former President Donald Trump's attacks on the media.

"The Supreme Court is making greater use of emergency orders in that it is issuing them more frequently, in more significant and lasting ways, and with outcomes that favor the right," Serwer observes. "This is not a matter of opinion; it is statistical fact. It is also an argument raised by the other justices on the Court in their dissents to the Texas decision. Alito's Trump-like broadside against the media, in other words, was also a means of mocking his own colleagues, while insisting that the Court is not partisan and that the justices are not political. He can do this, I would add, because the 6–3 conservative majority on the Court means he is unlikely to ever need their votes."