Justice Alito Is the Jurist America Needed

As we celebrate Justice Samuel Alito’s 20th anniversary as an Associate Justice on the U.S. Supreme Court (atop 15 years on the Third Circuit prior to that) and with rumors swirling of his possible retirement at the end of this term, now is the perfect time for an engaging biography of Justice Alito. And Mollie Hemingway, a highly respected conservative columnist and commentator, and the author of a best-selling book on the 2020 election (Rigged: How the Media, Big Tech, and the Democrats Seized our Elections) and co-author of a book about the confirmation of Justice Brett Kavanaugh (Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court), delivers the goods in this easy-to-read and thoroughly engaging book about Alito’s life and his considerable impact on the law.   

Let me state at the outset that those expecting an exhaustive account of Justice Alito’s life may be disappointed (for people who like that sort of biography, I recommend the first two volumes — each of which is a weighty tome — of James Rosen’s promised trilogy on the life of Justice Antonin Scalia). This is not meant as a criticism, though. To the contrary, Hemingway provides just enough information about Alito’s life to satisfy those who would like to know about his upbringing and life before joining the Court, and, more importantly, how that upbringing helped to shape his values and approach to judging.   

It’s all there in Chapter 2, which, though told in a concise fashion, is sprinkled with telling, and frequently funny, anecdotes and quotes. The son of a hard-working Italian family (“I am who I am, in the first place, because of my parents and because of the things that they taught me,” as he said during his confirmation hearing), Alito grew up in a blue-collar neighborhood in Trenton, N.J. (which has a bridge adorned in large lettering with the phrase “Trenton Makes — The World Takes”), where he played a lot of sports, especially baseball, eventually becoming a die-hard Phillies fan. He was a stellar high school student (“painstakingly perfect,” as one teacher described him) who was elected class president and valedictorian, studying in a library that was eventually renamed after him.  

Alito attended Princeton University during the Vietnam era and joined the ROTC (“I saw some very smart people and very privileged people behaving irresponsibly, and I couldn’t help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.”). As he had in high school, Alito excelled at debate and subsequently attended Yale Law School, where his constitutional law professor abandoned his class and headed, as he had threatened, to San Francisco. He served on the law review and pulled practical jokes on his friends, who returned the favor. Following a brief stint at an army base in Georgia and in private practice, he clerked for Judge Leonard Garth (later his colleague on the bench) on the Third Circuit.  

Following that, Alito scored a prestigious job as a prosecutor working in the appellate division of the U.S. Attorney’s Office in Newark, where he eventually developed the courage to ask out the loquacious office librarian, Martha-Ann, whom he eventually married (Hemingway: “She quickly ascertained she would marry him, though Alito would take some drawing out. … While Alito is shy and reserved, the bright and well-read Martha-Ann is vivacious and outgoing — and utterly unafraid to say things she is not supposed to say.”). He then worked in the Solicitor General’s Office at the Justice Department, where he briefed and argued cases before the Supreme Court, and was later recruited to work in the Office of Legal Counsel, often referred to as the “president’s law firm.”   

Alito then returned to the U.S. Attorney’s Office in Newark, this time as its head. He was subsequently nominated and unanimously confirmed to a seat on the Third Circuit (Hemingway describes an amusing exchange at Alito’s confirmation hearing between Senator Ted Kennedy — yes, that Ted Kennedy — and Alito’s four-year-old son Philip). He settled down to a quiet, happy life as a judge until President George W. Bush nominated him to the Supreme Court in 2005.  

Hemingway appropriately emphasizes Alito’s modesty and unassuming nature. For example, Hemingway relays how shocked a Little League coach was when he discovered that the man who had served as his assistant coach for three years was a prominent federal judge (“‘He’s a judge? What kind of judge? What’s the Third Circuit?’ the coach asked.”) She states, “In a room where he is the most important person, he makes those he is having a conversation with feel comfortable.” I can personally attest to that, as can many others. In the summer of 2007, not long after he had joined the Court, Justice Alito was teaching a seminar at Pepperdine Law School. The head of the local chapter of the Federalist Society, a close friend of mine, asked Alito if he would be willing to meet with the group. Alito accepted the invitation subject to three conditions: keep it small, no press, and hold it in a private home. As luck would have it, my friend asked if my wife and I would be willing to host such a gathering since we lived near the school. We readily agreed. Justice Alito and Martha-Ann were the first to arrive and the last to leave. They spoke to everyone, including our slightly bewildered caterer, posed for pictures, and could not have been more charming or less full of self-importance. It was a memorable day, to be sure, for all the attendees. 

There is a chapter devoted to how Alito got the nod for the Court following the failed nomination of White House Counsel Harriet Miers, and, of course, to the confirmation hearings themselves. And there are other chapters and passages about other confirmation fights that occurred prior to Alito’s (Robert Bork, Clarence Thomas) and after (Brett Kavanaugh, Amy Coney Barrett), and that contain vivid and insightful descriptions of the other justices on the Court, especially the liberal wing, which is comprised of Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson. Hemingway has an insider’s knowledge of the Court that would make most Court-watchers green with envy, revealing, for example, how many rounds of edits Alito’s draft opinion in the Dobbs case underwent prior to being leaked; who tried to peel whom away from that draft opinion to avoid overturning Roe; an incident in which Justice Kagan screamed so loudly at Justice Stephen Breyer in his chambers following the leak that the “wall was shaking”; and the fact that Justice Gorsuch’s chambers sent doughnuts over to Alito’s chambers to express how sorry they were about what they were going through following the leak. 

As one would expect, Hemingway analyzes many cases in which Alito played an integral part and compares his jurisprudential philosophy with those of his colleagues, both liberal and conservative. She does an outstanding job of explaining just enough law and constitutional theory to inform and engage her non-lawyer readers without getting bogged down in arcane legalese, an admirable quality mirrored by Alito in his own opinions, which are written to be clearly understood by the public. 

There is, unsurprisingly, an extensive discussion of originalism, the once-obscure (but certainly no longer) legal theory, championed by many legal luminaries, including Robert Bork, Edwin Meese, and Antonin Scalia, that posits that the Constitution’s words and phrases should be interpreted according to how they were used and understood at the time those provisions were ratified. Justice Alito has described himself as a “practical originalist.” In 2022, I had the privilege of engaging in an extensive interview with Justice Alito (which you can see here or read here). When I asked him what he meant by that when he first said it, he replied that, “there is a difference between originalist judging, which has immediate practical consequences, and originalist scholarship, which can be very influential in the longer run but doesn’t have consequences the moment the scholarship is published.”  

Hemingway devotes an entire chapter to this topic, citing a 2010 speech in which Alito said, “judging is not an academic pursuit; it is a practical activity,” and a 2014 interview in which he said, “What we are doing is not abstract. It has an effect on the real world.” In contrast to Alito’s practical originalism, his colleague Clarence Thomas was once described by Justice Scalia as a “bloodthirsty originalist,” a moniker that drew no objection from Thomas. Hemingway succinctly describes the difference as follows: “Thomas is playing a long and principled game. He plants a flag where he believes the Court should be. He articulates his vision in his opinions and hopes to move the legal culture over the long haul. Alito, less theoretical, is more interested in the tactical work of assembling a majority to seize new ground today.” She adds: “This is the viewpoint of a man who served as a US attorney and an assistant to the solicitor general and who spent fifteen years as an appellate judge applying Supreme Court rulings. It helps explain why he delves into the facts of a case and considers the consequences of a ruling more than his colleagues do.”  

While describing an Alito opinion in an Establishment Clause case, Prof. Joel Alicea, a former Alito law clerk, provides an excellent description of  Alito’s practical originalist approach: “While Justice Alito’s opinion in American Legion may not have been as pure or as satisfying as many originalists would have liked, it demonstrated a masterful ability to navigate the Court in an originalist direction in the face of internal disagreement among the justices — and to bring about exactly the result that originalists seek.”    

Hemingway helpfully provides many examples of Alito’s detailed and practical approach to the law, as evidenced in his opinions, while remaining faithful to originalist principles. She even cites a couple of occasions when that approach led him to write a lone dissent, including First Amendment cases involving animal crush videos (U.S. v. Stevens) and a case involving members of an obscure church that would protest at the funerals of servicemen killed in the line of duty claiming that they deserved to die because of our country’s tolerance of homosexuality (Snyder v. Phelps). His real-world approach to judging also shines through in oral arguments. Alito has long been considered the Justice who asks the most incisive questions during oral argument, and Hemingway provides many instances where his questions to the advocates cut to the heart of the matter, laid out the practical consequences of their arguments, and may well have been outcome-determinative.  

While Alito’s influence on the law extends to many areas, perhaps it has been most deeply felt in, to quote Hemingway, “protecting the free exercise of religion,” which Alito described in a 2022 speech in Rome as “dangerous to those who want to hold complete power.” For this reason, Hemingway lingers over some of Alito’s more significant religious liberty opinions, including majority opinions in Holt v. Hobbs (upholding the right of Muslim prisoners to be exempted from a prohibition against beards), Burwell v. Hobby Lobby (applying the Religious Freedom Restoration Act to a closely held, for-profit Christian company whose owners objected to an Obamacare regulation requiring them to offer a health care plan that provided its employees with access to abortifacients), Our Lady of Guadalupe School v. Morrissey-Berru (applying the ministerial exception, enabling the Archdiocese of Los Angeles to prevail over two classroom teachers who had sued for wrongful termination), and his lengthy opinion concurring in the judgment in Fulton v. City of Philadelphia (urging his fellow justices to overturn the Court’s prior opinion in Employment Division v. Smith, a controversial decision believed by many to have weakened free exercise rights). 

And then there is Dobbs v. Jackson Women’s Health Organization, the case that will likely be most closely tied to Justice Alito when he finally decides to hang up his robe and head off to a well-deserved retirement. Hemingway walks her readers through a history of abortion before the Supreme Court, culminating in Roe v. Wade, the 1973 case in which the Supreme Court, in a majority opinion written by Republican-appointee Harry Blackmun, created out of whole cloth a constitutional right to obtain an abortion, an opinion that was criticized at the time by eminent (abortion-supporting) scholars such as John Hart Ely (“It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”). She further chronicles the Court’s lamentable attempts in subsequent cases, often with the support of Republican-appointed Justices, to buttress Roe’s woefully deficient constitutional underpinnings. This constitutional travesty finally ended forty-nine years later with the Dobbs case and a masterful majority opinion by Justice Alito. Hemingway marches the reader through the Mississippi Solicitor’s preparation, the oral argument, the Justices’ internal deliberations (yet more evidence of the quality of her inside sources), and, of course, the mayhem that ensued.  

On May 2, 2022, the Court suffered what Hemingway says (and nobody would disagree) was “by far the worst [leak] in the Court’s history” when Politico published a complete copy of Alito’s draft majority opinion, which did not change that much from the final version that was ultimately released. Beyond bewildering and inconvenient, this led to a public outcry, an internal investigation (ultimately, inconclusive), and daily protests outside the homes of the six Republican appointees. Even more distressing, the leak imperiled the lives of those justices. It did not take a genius to figure out that killing one of the justices might change the outcome of the case. As it happened, five justices were prepared to overturn Roe; the three Democratic appointees wanted to uphold it; and Chief Justice Roberts wanted to uphold Mississippi’s law while not overturning Roe. This horror almost came to pass when a depraved individual who had the plan and the wherewithal to assassinate Justice Kavanaugh was apprehended outside the justice’s home. Had the would-be assassin succeeded, there would have been four votes to overturn Roe and four to keep it, which would have resulted in Roe surviving and then-President Biden replacing Kavanaugh with someone who surely would have been a fifth vote to uphold Roe. Fortunately, the plot failed, but some of the leak's after-effects persist to this day. 

Hemingway devotes a whole chapter to the scurrilous and unrelenting ethics charges that have been leveled over the years against the Republican appointees on the Court and the rank hypocrisy displayed by well-funded interest groups and politicians on the left, and the mainstream media, in how they are treated compared to Democratic appointees, most especially Ruth Bader Ginsburg and Stephen Breyer (for those interested in a condensed version of this subject, I wrote a short article in 2023, which is available here). Not surprisingly, the left has leveled most of those charges against the two justices with the firmest backbones—Samuel Alito and Clarence Thomas. They do so knowing full well that there is not a snowball’s chance in Hell that Alito or Thomas, who couldn’t care less what is said about them in the New York Times or at Georgetown cocktail parties, will moderate their views or succumb to public criticism. Rather, their unstated, but quite clear, goal is to send a message to all other judges and would-be judges to “Bend the knee to liberal orthodoxy or we will crush you!” Hemingway lays out all the charges and thoroughly — and, at least to any objective reader, conclusively — refutes them. 

And speaking of hard-left critics, Hemingway quotes from an article in which Ian Millhiser, a correspondent for Vox and analyst at the Center for American Progress, said, “I’ve thought for a long time that Alito is the smartest conservative on the court. He’s strategic in a way Scalia and Thomas aren’t.” He may well be right about that; after all, even a stopped clock is right twice a day. I once debated Millhiser at the National Constitution Center, during which he made it quite clear that he hates Alito. He has slammed Alito on a whole host of issues, going so far as to post (and delete shortly thereafter) a “prewritten obituary” of Alito in 2022, essentially accusing him of being a party hack while sitting on the bench. If you are known by your enemies as well as by the company you keep, I would say that Justice Alito is doing just fine and richly deserves his place in the pantheon of great justices. In this excellent and timely book, Mollie Hemingway does an outstanding job explaining precisely why that is so. 

John G. Malcolm is the Vice President of the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom.