You’re reading Major Questions, Jesse Wegman’s newsletter on the Supreme Court — click here to receive it in your inbox twice a month.
In the introduction to So Ordered, a collection of speeches Justice Samuel Alito has delivered over the years on various topics, Alito offers, almost in passing, a lament about the current state of religious tolerance in America.
“Throughout history, nations have been plagued by strife between members of different religious groups, yet in the United States, one of the most religiously diverse countries the world has ever seen, people of all faiths have been able to live and work together with a remarkable degree of success.”
Nothing objectionable here, although he’s clearly building to a “but.”
“Our foresighted Founders laid the foundation for this achievement by creating a new type of republican government, one that is friendly to religion and asks only that all Americans, regardless of their deeply held beliefs, comport themselves as good citizens.”
Again, I’m more or less on board with this. My eyebrow arches a bit at “friendly,” which isn’t the first word I would use to describe a regime founded, as Thomas Jefferson famously put it, on a “wall of separation between Church and State.” Anyway, onward.
“Recently, however, religious intolerance has grown. People attending religious services have been attacked and killed, and many houses of worship have been vandalized. Especially alarming is the reemergence and spread of anti-Semitism. . . . If the United States is to remain a place where people of all faiths can live together in peace, Americans must fight to preserve freedom of religion and conscience.”
Alito is right, of course, that people of faith have experienced an uptick in violence directed at them, their communities and houses of worship in recent years — including Muslims, who have been a favorite target of President Trump, Vice President JD Vance and their Republican allies. That’s a bad thing and deserves both legal and moral sanction.
What struck me was how clearly filled with compassion Alito is in these cases, a stance that he has traced to his childhood and family experiences of anti-Catholic and anti-Italian discrimination. If only the rest of his jurisprudence were characterized by such compassion. Over and over again, his opinions for the court evince deep solicitousness for certain Americans and little or none for others. A few recent examples paint a clear picture.
In his majority opinion for Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and eliminated the constitutional right to abortion in 2022, Alito managed to get through 79 pages with virtually no reference to the women whose lives would be upended (if not ended) by the Court’s ruling. He spent more time approvingly citing Sir Matthew Hale, a 17th-century English judge who reasoned that married women could not be raped by their husbands, than he did considering the plight of a woman denied the right to control what happens in her own body, or how women’s expectations of their rights in American society had transformed over the years with the help of Roe and other major changes. As Linda Greenhouse wrote in the New York Times, Alito dismissed one of the landmark constitutional rulings in American history “without in any way meaningfully acknowledging the impact both on women and on the constitutional understanding of sex equality as it has evolved in the past half-century.”
In Louisiana v. Callais, the Court’s decision last spring that delivered a death blow to the Voting Rights Act, Alito, again writing for the majority, did not seem to notice or care about the tens if not hundreds of thousands of Black voters who would be disenfranchised now that he and his colleagues had freed Southern legislators to do more or less exactly what the Voting Rights Act had been stopping them from doing for generations.
Or take September’s shadow docket ruling blocking Trump’s executive order attempting to limit voting by mail. In dissenting from that ruling, Alito expressed the concern that the equities in the case had not been properly balanced. As I wrote here a few weeks ago, “the harm that concerned Alito was not to the millions of voters who would be unable to cast a ballot under the new rule. Rather, he wept over the Trump administration’s inability to implement its preferred policy.”
One more example, for good measure: Trump v. United States, the presidential immunity case from 2024 that virtually every legal expert in America assumed would go one way until it went the other. Remember: This was about whether Trump could be criminally prosecuted for his actions on and around the Capitol insurrection of January 6, 2021. During oral arguments in the case, however, Alito seemed far more concerned about a hypothetical he came up with: What if an incumbent president “loses a very close, hotly contested election,” he asked. Without immunity, he won’t be able to “go off into a peaceful retirement” because he might be criminally prosecuted by his political opponent. “Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” On the day of those arguments, I wrote of Alito’s remarks, “It was the literal inverse of the case before them.” More than two years later, I’m still in shock that this bizarre hypothetical appeared to trouble him more than, say, the reality staring him in the face.
Maybe I shouldn’t be. Samuel Alito’s jurisprudence is peppered with these vast discrepancies of empathy, an empathy that shows up most clearly in the religious liberty cases. But you see it across his opinions, the well-defined in-groups and out-groups that he has been fighting for (or against).
In that sense, Alito is the judicial avatar of the Trump era. Despite being one of the Court’s three conservatives not appointed by Trump, he best embodies the aggrieved, revanchist mindset that fueled this president’s rise and reign. The zero-sum, us-vs.-them worldview. The sorting and dividing of Americans into favored and disfavored, worthy of rights and unworthy of them. Alito may not go about his business as crassly as Trump, but as someone unburdened by having to appeal to voters, he doesn’t have to. Anyway, his sympathies seem clear: He lives in a house that flies Trump flags, and he votes in the president’s favor more than any other justice.
