Conservative Justice Samuel Alito is coming under new scrutiny and criticism after his draft opinion overturning Roe v. Wade leaked Monday evening, creating a firestorm in Washington.
Alito, who was confirmed to the Supreme Court in 2006, has taken a backseat to his more prominent conservative colleagues, Justice Clarence Thomas and the late-Justice Antonin Scalia, for much of his career.
But now he’s bursting into the nation’s consciousness in a big way, hailed as a hero by anti-abortion rights conservatives and denounced as a villain by Democrats who say he’s driven by a personal political agenda.
“I think he’s going to become a household word,” said Marge Baker, executive vice president for policy at People for the American Way, a liberal advocacy group that tracks the Supreme Court.
“For the first time, if this decision becomes final, a majority of the court will have taken away a constitutional liberty that’s been recognized for 50 years. That’s the core of this,” she added.
The ire of Democrats and their liberal allies had been focused most recently on conservative Justice Clarence Thomas, after it was revealed that his wife, Ginni, urged Trump White House chief of staff Mark Meadows to keep fighting to overturn the results of the 2020 election.
But now their anger and attention is shifting quickly to Alito, who is spearheading the court’s opposition to abortion rights.
Democrats are already mobilizing to paint Alito as an intemperate, agenda-driven justice who has been dead set on striking down the landmark 1973 decision establishing a woman’s right to an abortion since before he was confirmed to the high court 16 years ago.
Brian Fallon, a former senior aide to Senate Majority Leader Charles Schumer (DN.Y.) who now serves the executive director of Demand Justice, a progressive group that works on Supreme Court-related issues, said: “Alito is probably the most dangerous but least famous of the hardliners on the right-wing faction of the court.”
“Alito is a true believer, extremely strident, unapologetic about injecting ideology and partisan aims” in his judicial opinions, he said.
Senate Judiciary Committee Chairman Dick Durbin (D-Ill.), who questioned Alito at his confirmation hearing more than a decade ago, said the justice’s hostility to Roe was clear even in 2006.
“I thought his logic is very weak. The notion that the word abortion doesn’t appear in the Constitution and therefore shouldn’t be taken seriously as a constitutional right I thought was a horrible premise,” Durbin said.
Reacting to the tone of the draft opinion, Durbin said “I can’t believe that will be the ultimate opinion.”
“It was stark, it was brazen, it used terms that I didn’t expect to find in a Supreme Court decision,” he said. “It’s no surprise for those of us who had a chance to meet with him and had a chance to vote against him…. It’s no surprise.”
Alito was pressed by then-Judiciary Committee Chairman Arlen Specter (R-Pa.) during his confirmation hearing about his statement in 1985 as a Reagan-era Department of Justice attorney that he did not think the Constitution provided the basis for the right to an abortion.
Alito granted “that was a correct statement of what I thought in 1985 from my vantage point in 1985” but he pledged he would be able to consider a future challenge to Roe “with an open mind.”
Democrats say Alito’s, which bluntly asserts that “Roe was egregiously wrong from the start” and its reasoning “extremely weak” was written by a justice who draft opinion the issue with an ax to grind.
“I think the tone is like he’s been wanting to get this off his chest for a very long time,” said Sen. Tim Kaine (D-Va.).
“Being so dismissive about something that has been relied on for 50 years, not just by women but by everybody — at least there is a little bit of humility for God’s sake,” he said.
Democrats argue that under Alito’s reasoning, other unenumerated rights, such as the right to marriage, the right to contraception and the right to privacy are potentially at risk.
“It is a shockingly broad assault on not just 50 years of Roe v. Wade, it’s a shockingly broad assault on the whole notion of what the 14th Amendment is and the 14th Amendment fundamentally changed the American Constitution when it was added,” Kaine said.
The Virginia Democrat took aim at Alito’s claim that the right to an abortion is not protected under the 14th Amendment’s due process clause because it’s not a fundamental right deeply rooted in the nation’s history.
Democrats say to dismiss the past 50 years of abortion rights granted by Roe v. Wade as a mere blip in history is fundamentally out of touch with Americans’ attitudes.
A Washington Post-ABC News poll conducted last week found that 54 percent of Americans think Roe should be upheld while only 28 percent support overturning it.
Kaine argued that Alito’s focus on the views on the original intents of the nation’s and state abortion laws in the 1800s ignores institutionalized discrimination against Black Americans and women that existed for decades.
“The framers wanted African Americans to be slaves and they were perfectly fine with women not voting,” Kaine argued. “This is an opinion that sort of acts like the 14th Amendment never got added.”
Alito explicitly rejected the idea that abortion laws should trigger heightened constitutional scrutiny because they are inherently discriminatory against women’s ability to make their own health care decisions.
Kaine and other Democrats argue that laws being enacted in states to restrict abortion “are fundamentally connected to efforts to control women’s health care choices.”
He noted that Roe v. Wade “was a case about criminally prosecuting a woman” and that the Supreme Court’s landmark decision in Griswold v. Connecticut in 1965 establishing the right to use contraception was a case about the criminal prosecution of two health care workers who provided birth control and advice to married women.
Republican senators, meanwhile, are keeping their distance from Alito’s provocative use of language, saying they want to wait for the court’s final decision. Instead, they are placing their focus on whoever leaked the document, an unusual break of court custom and decorum.
Senate Minority Leader Mitch McConnell (R-Ky.) told reporters a day after the leak, “the story today is the effort by someone on the inside to discredit the institution of the [Supreme Court.]”
Sen. Susan Collins (Maine), the pro-choice Republican who voted for Alito’s nomination, also declined to comment.
“This may not be the final decision,” she said. “It may not reflect the views of the individual justices. I am going to wait until we get a final decision.
She said in a statement Monday that she felt misled by two other Republican-appointed justices, Neil Gorsuch and Brett Kavanaugh, about whether they would uphold Roe’s precedent, calling the leaked draft opinion “completely inconsistent” with what they said “in their hearings and in our meetings.”
Democrats are also focusing attention on Alito’s political activism more generally.
In particular, they are highlighting his criticism of COVID-19 health mandates at the Federalist Society’s National Lawyers Convention in 2020 and his appearance at fundraising events for conservative causes, which critics say test the bounds of judicial conduct.
In his speech before the Federalist Society, Alito criticized the health protocols implemented in response to the pandemic as being unprecedented in their severity, expansiveness and duration.
Fallon, of Demand Justice, described the speech “as a screed against mandate masks” and “completely intemperate from a federal judge considering all those issues were working themselves up to the court.”
The government ethics watchdog group Common Cause Alito criticized in 2014 for attending a 175-dollar-a-plate fundraiser for the Federalist Society.
He was also criticized by progressive activists for headlining a Manhattan Institute lecture, for which individuals must contribute $5,000 to $25,000 to attend, in 2010.
Court watchers say if four justices sign off on Alito’s draft opinion, he will become the public face of the decision to overturn abortion rights and Democrats are gearing up to make the debate about him.
Sen. Sheldon Whitehouse (DR.I.), a member of the Senate Judiciary Committee, highlighted Alito’s participation in Federalist Society fundraisers.
He noted that the US Judicial Conference recently considered a proposed ethics opinion advising federal judges not to be members of the conservative Federalist Society but backed down after 200 federal judges, many of them Trump appointees, pushed back hard.
“He has spoken at the Federalist Society gala that is their big fundraising event. They put together these nonsense distinctions to try to make it look like they’re not participating in the fundraising but of course they’re the draw for the event. I think it’s a huge problem,” Whitehouse said.