The Court's 2020-2021 Term: Justice Alito and Judging at its Worst

By Eric Segall

There are so many things disturbing about Justice Samuel Alito that it is hard to know where to start. I will get to this year's term below but let's begin with the fact that from his confirmation in 2006 to the day Justice Kennedy retired in 2018, according to Adam Feldman of the Juris Lab, not once did Alito vote with the liberals in a 5-4 case. Not once. That statement is not true for the three other most conservative Justices--Thomas, Scalia, and Roberts--who served during that period.

Off the Court, as I previously documented here, Alito has made unethical speeches to the Federalist Society and Catholic organizations lamenting the threat to religious "liberty" allegedly caused by the Court's gay rights decisions while cases raising that very tension were/are percolating in the lower courts. And who can forget his infamous mouthing of the word "no" during a State of the Union Address by President Obama?

But it was in 2021 that Alito outdid himself. In a number of important cases he made misleading and overbroad statements even by the loose standards of Supreme Court opinion-writing. With six conservative Justices now ruling the Court and the land, there is a lot of awful Alito yet to come.

In Fulton v. City of Philadelphia, the issue was whether Catholic adoption agencies which would not certify same-sex couples as eligible to adopt could be disqualified from a publicly funded program. Chief Justice Roberts wrote a narrow opinion against the city mostly on the basis of a technicality in the law. Alito wanted to go much further and reverse the landmark Employment Division v. Smith decision holding that the free exercise clause simply does not apply to generally applicable laws. Fair enough. But Alito also made these highly contentious and misleading statements: 

The city of Philadelphia has issued an ultimatum to an arm of the Catholic Church: Either engage in conduct that the Church views as contrary to the traditional Christian understanding of marriage or abandon a mission that dates back to the earliest days of the Church—providing for the care of orphaned and abandoned children.

Philadelphia in no way barred the Catholic Church or any religious organization form helping families adopt children. The city simply said that if any organization wanted to participate in a government funded program to help these kids, it could not discriminate against same-sex couples while doing so. The Vatican has somewhere between ten and fifteen billon dollars of assets and if it wants to help find children good homes, it has more than enough money to do so. Alito's characterization of the Philadelphia policy as a ban or a prohibition that would prevent the Church from its mission of finding good families for orphans is simply false.

Perhaps the most important case of 2020 was Brnovich v. Democratic National Committeein which the Court upheld two sections of Arizona law making it harder for minorities to vote. Justice Alito wrote the majority opinion denying a challenge to the law under Section 2 of the Voting Rights Act ("VRA") which in relevant part prohibits any voting rule that denies or abridges the right to vote on account of race, color, or membership in a language minority group. The case involved prohibitions on third-party vote collection and an out-of-precinct policy that barred the counting of an entire ballot filed in the wrong district even if parts of the ballot were valid. Admittedly, these provisions raised difficult issues under the VRA but Alito's opinion for the majority turned the VRA on its head and made it much harder for future plaintiffs, including the US Government, to bring successful challenges to state laws that make it harder for people of color to vote.

Alito claimed that he was eschewing any formal test to evaluate Section 2 claims and instead listed five open-ended factors for courts to apply. These factors are the following:

The size of the burden imposed;  

The degree to which that burden departs from what was standard practice when Section 2 was amended in 1982;  

Disparities in its impact on members of different racial or ethnic groups;

The opportunities provided by a state’s voting system; 

The strength of the state interests — such as the interest in preventing election fraud — served by a challenged policy. 

As others have observed, these vague considerations, especially the last factor, created a high burden of proof for plaintiffs to satisfy when trying to demonstrate that state voting restrictions have the effect of burdening the right to vote for people of color despite 1982 amendments to the law specifically designed to make such cases easier, not harder, to prove. Alito's strong distaste for the Voting Rights Act was apparent throughout the opinion, as was his ahistorical and atextual analysis of the law. As Justice Kagan remarked angrily and accurately in dissent:

Today, the Court undermines Section 2 and the right it provides. The majority fears that the statute Congress wrote is too 'radical'—that it will invalidate too many state voting laws. So the majority writes its own set of rules, limiting Section 2 from multiple directions. Wherever it can, the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters. I could say—and will in the following pages—that this is not how the Court is supposed to interpret and apply statutes. But that ordinary critique woefully undersells the problem. What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about 'the end of discrimination in voting.'

It is of course no coincidence that state rules making it harder for people of color to vote substantially help the Republican Party.

The 2020-2021 term also included yet another challenge to the Affordable Care Act ("ACA"), a statute Alito had twice before tried to invalidate. This case, however, bordered on the frivolous even according to people like Professor Jonathan Adler, a strong opponent of the law. As I've documented before, this case began when the Republican Congress in 2017, unable to repeal the entire ACA, simply eliminated the mandate that people buy health insurance or pay a tax. Through mind-bending legal analysis, a forum shopped anti-Obama judge held that the removal of the mandate/tax somehow made the whole statute unconstitutional because that section could not be severed from the law. This holding was pure nuts, as the severance question is always one of legislative intent and Congress clearly demonstrated its intent to keep the rest of the law by...keeping the rest of the law. In any event, in a 7-2 decision, the Court held that the plaintiffs didn't have standing to bring the case.

Justice Alito disagreed. Along with Justice Gorsuch, he would have found standing for the plaintiffs and then would have struck down the parts of the ACA that "burden the states." Here is how Alito began: "Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue."

This sarcastic tone continued throughout the opinion. Once Alito finished with standing and moved on to the merits, he spent many pages trying to show that the mandate/tax was unconstitutional even though that part of the law no longer existed. Maybe Alito just likes to hear himself speak (or read what he himself writes). In any event, when he finally discussed severability, he made this startling observation, "the 2017 Act cannot plausibly be viewed as the manifestation of a congressional intent to preserve the ACA in altered form." But the 2017 Act, in fact, preserved the ACA in its altered form. Alito's re-writing of history is, quite simply, other-worldly.

There are other cases to talk about where Alito did something awful but these three are quite representative. It is too early to tell whether any of the new Justices appointed by President Trump will be as doggedly partisan as Alito or will engage in make-believe quite as often as Alito does. But I wouldn't bet on it.