ASMA KHALID, HOST:
After a tumultuous term, U.S. Supreme Court justices have largely left Washington, D.C., to be celebrated or criticized in communities nationwide - none more so than the author of the decision this term that overturned Roe v. Wade. NPR legal affairs correspondent Nina Totenberg has this look at Samuel Alito, a justice who, until now, has kept a relatively low profile.
NINA TOTENBERG, BYLINE: In the history of the Supreme Court, the names of just a few justices are linked with a single, very famous or infamous decision - Chief Justice Roger Taney for his infamous decision in the Dred Scott case, declaring that no African American, enslaved or free, could be a citizen of the United States, a decision that led, in part, to the Civil War; Chief Justice Earl Warren for his 1954 decision declaring segregation in public schools unconstitutional; and now the name of Samuel Alito is indelibly linked with the court's opinion overturning a half century's worth of decisions declaring that women have a right to abortion.
Alito, unlike Taney and Warren, is not chief justice, and he may be little-known to the public generally. But he's played a key role on the court, often leading the conservative charge not just on abortion, but for expanded religious rights, against LGBT rights, against expanded voting rights, for the death penalty, against labor unions and more. Indeed, within a short time of replacing the more moderate Justice Sandra Day O'Connor in 2006, he became something of the workhorse of the right. On contraception, for instance, he wrote the court's 5-4 decision, declaring that closely held for-profit corporations could refuse, on religious grounds, to comply with a federal law that requires employer insurance policies to cover contraception for their employees.
(SOUNDBITE OF ARCHIVED RECORDING)
SAMUEL ALITO: This court has said time and time again that we have no business judging whether any sincere religious belief is valid or reasonable, and it would be dangerous if we started down that road.
TOTENBERG: He wrote the court's 2010 decision striking down state bans on handguns in the home.
(SOUNDBITE OF ARCHIVED RECORDING)
ALITO: The right to keep and bear arms is implicit in our understanding of ordered liberty and is deeply rooted in the traditions of our country.
TOTENBERG: He wrote the court's 2007 decision declaring that victims of race and sex discrimination on the job could only recover damages dating back a hundred and eighty days after filing suit, as opposed to when the discrimination began. Congress promptly rebuked the court, amending the anti-discrimination statute to make clearer that damages and backpay are to be paid from the date the discrimination begins. In death penalty cases, Alito has been impatient with attempts to limit capital punishment. And in voting rights cases, he's repeatedly sided with state laws that make it more difficult for people to vote. As he wrote in a 2021 opinion, mere inconvenience cannot be enough to demonstrate a violation of the Voting Rights Act.
Few issues appear to rankle Alito as much as those that directly or indirectly involve religion and perhaps, not incidentally, the modern culture wars. As he put it in a July speech...
(SOUNDBITE OF ARCHIVED RECORDING)
ALITO: There's also growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code.
TOTENBERG: The Dobbs decision was, in essence, Alito's exegesis on abortion and constitutional interpretation. There's no audio of his opinion announcement because the court conveniently abandoned these announcements at the height of the pandemic and thereafter, a move that's been widely criticized. But as Alito explained in his written abortion opinion, the Supreme Court's Roe decision and the decisions that followed had to be overruled because Roe was, quote, "egregiously wrong," the arguments for it "exceptionally weak," and because there was no history or tradition of abortion at the time of the founding or thereafter. There was no evidence, said Alito, "zero" that supported such a right.
Many on the political right hailed the decision as brilliant and an example of Alito's approach to the law. He's not a partisan, said one former clerk. He just believes that the law is based on rules. And rules are rules, regardless of politics. Liberal Yale law professor Akhil Amar defends Alito, too, maintaining that the justice succeeds by staying within the lines and not overreaching.
AKHIL AMAR: He's quiet. He's able to succeed.
TOTENBERG: But others, including some conservatives, disagree. Sarah Isgur served in the Trump Justice Department and at one time, was a leader in the conservative Federalist Society. She says the Alito opinion fails the critical test of persuasion because it speaks only to those who agree with him.
SARAH ISGUR: When you have a court that is 6-3 on so many different types of opinions, you can end up with a feeling that there are permanent winners and losers. And the court - when it writes, it needs to write more persuasively to the people who might feel like they're permanent losers.
TOTENBERG: The question at this point, she says, is not whether Roe was correctly decided.
ISGUR: The question is, do you overturn a precedent that has been on the books for 50 years, the most famous case probably to most Americans in the country? And it's not even close.
TOTENBERG: Cornell constitutional law professor Michael Dorf is more pointed, calling the opinion dishonest because it so selectively cites history to make a one-sided case.
MICHAEL DORF: The judge is supposed to look at it from a more balanced perspective, and that's not what Justice Alito does. You know, one wonders how so many prior justices, a majority of whom were appointed by Republican presidents, could have found a right to abortion in the Constitution and then reaffirmed that right. There's a kind of arrogance to the opinion in the way it proceeds in a one-sided manner.
TOTENBERG: Sarah Isgur says that Alito's assurances ring hollow when he contends, at the end of his opinion, that the logic of overturning Roe will not apply in the future to the court's other precedents that relied on the same reasoning - the same-sex marriage opinion or its opinions guaranteeing the right to access contraception, for instance. That may be, but Sam Alito is part of a court that, as Chief Justice John Roberts observed in the Dobbs case, is displaying a relentless freedom from doubt on legal issues.
Nina Totenberg, NPR News, Washington.
(SOUNDBITE OF CHARLES MINGUS' "MOANIN'")
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.