I heard Slate’s Dahlia Lithwick speak last week about her experiences covering the Court. Dahlia said that one of the main differences between the Court’s first 150 years and the current Court is that the latter are not nearly as tough, because none of them are former politicians. Then I read Justice Alito’s dissent in Snyder v. Phelps this week and I got to thinking.
It used to be the case that the Court’s membership was composed, in part, of former politicians. By the time they reached the Court, those justices were used to the petty taunts and torments—even God-forbid—the name calling of politics. They had thick skins.
By contrast, today’s justices grew up, professionally, in the cloistered circuit courts—a place where they faced little abuse and few challenges to their supremacy. Think about it: if you remove Judge Reinhardt from the equation, rarely do you hear the really vitriolic hate for appellate court judges that are the norm for the Nine. And as a result, the justices are not as battle-tested when they reach the Court, or, for that matter, when they reach a confirmation hearing.
Never was this fact more apparent than in the confirmation hearing of Samuel Alito. Democrats Senators pressed Alito on his record, and at different points of the hearing, they implied that he was a racist, misogynist, and an opportunist, for failing to recuse himself on a case involving Vanguard—a company of which he owned stock. Neither Alito, nor his wife, handled the grilling very well. They, as would most, took it personally.
Fast forward to the present. After reading Alito’s lone dissent this week in Phelps, I wondered whether he has ever gotten over the confirmation name calling. In the first sentence of his opinion, he writes: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” Then, in the second paragraph he uses the following words in describing the case: “tumultuous media event”; “malevolent verbal attack”; “acute emotional vulnerability”; “severe and lasting emotion injury”; and, “brutalize.” The same descriptions could have been used for day two of his confirmation hearing.
Now I know that the Westboro church’s comment were truly “brutal.” On that point there is no question. You therefore might dismiss the comparison I am making had Phelps not been an easy case. But it was. All three circuit judges reversed the multi-million dollar damage award and eight justices agreed that we simply cannot allow people to be sued for “outrageous” speech on public issues; because to do otherwise would be the worst slippery slope, ever. So the fact that Alito was out alone makes me wonder whether his personal life experiences informed his resolution of this case. Not that that is a bad thing. But I wonder how Alito’s “sensitivity” or, dare I say it, his “empathy,” will play out on other cases. Maybe he may use some of that “sensitivity” when deciding how to rule on the case involving prisoners dying every day in the overcrowded California prison system. Because that too is “brutal.” One can hope.