Alito's Freak Flags are Flying | Opinion

Photo illustration by Craig Tuggle.

As a relapsed Catholic and long in the tooth federal trial lawyer, I am more familiar with Samuel Alito’s religious nuttery than I want to be. I certainly didn’t need any more proof that his jurisprudence — as well as his misogyny — has deep Catholic roots, but last week filmmaker Lauren Windsor brought the receipts anyway.

A couple of weeks ago, at the annual dinner for the Supreme Court Historical Society, Windsor secretly taped Alito agreeing with a stated goal of fighting to return “our country to a place of godliness.” I’m not a fan of secret wiretaps, but every public figure with a lifetime federal appointment should assume that what they say to strangers in public places could become public.

When Windsor asked Alito about the nation’s current polarization, Alito replied that “one side or the other is going to win … you know, because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So it’s not like you are going to split the difference.” So much for being a neutral arbiter, or an umpire calling balls and strikes where they fall.

Alito’s religious bias shows in lopsided findings of standing

Rolling Stone first reported the exchange, and observed that Alito makes little effort to hide that he is a partisan member of a hard-right judicial faction. Alito’s statement that “fundamental things really can’t be compromised” suggests he sees cases as zero-sum affairs. Instead of serving as an arbiter trying to craft a just result based on established precedent, Alito picks sides, then drives his selective analysis toward his desired result.

Vox conducted an assessment of Alito’s “standing” decisions — cases that examine whether federal courts have jurisdiction to decide a particular dispute — and found that Alito has ruled in favor of conservative litigants 100% of the time. Standing means plaintiffs must have a personal stake in the dispute; they can’t just be an interested bystander. Finding standing among 100% of conservative litigants — and zero percent among liberal plaintiffs — demonstrates irrefutable bias.

Alito seems particularly inclined to find standing when religious beliefs are offended, as crystallized in 303 Creative LLC, the web designer case. In 303 Creative, Alito and the conservative majority allowed business owners to refuse to do businesses with gay couples on the grounds that gay marriage offends their religious beliefs.  The Plaintiff, a web designer, didn’t have standing to sue — no gay clients sought her services, she claimed she was afraid that Colorado’s non-discrimination law meant she might have to design a wedding website for gay couples.

Alito and the conservative majority found standing anyway, and issued what amounts to an advisory opinion, simply to set anti-LGBTQ policy for the nation. So much for Federalists not legislating from the bench.

Alito’s Catholicism-driven misogyny comes through in Casey, Hobby Lobby, and Dobbs

When Alito served on the Third Circuit Court of Appeals, his dissent in Planned Parenthood vs. Casey would have required women to notify their husbands prior to getting an abortion, equating a husband’s control with parental control.

Then, in 2014, in Hobby Lobby, in a 5-4 split, Alito wrote that an employer had the right to exclude contraceptive coverage from employee insurance plans based on the employer’s religious beliefs.

In his infamous Dobbs opinion, Alito revived a 13th century treatise on English law and custom, written when women were burned alive as witches. Alito determined that legal abortion did not exist at common law, yet pages 16 through 28 of Alito’s own opinion describe how abortion was legal up to 25 weeks, for centuries.

Alito’s hubris and refusal to recuse should lead to his impeachment

During oral argument on Trump’s insurrection case, Alito offered a crazy argument that presidents need broad immunity from criminal consequences, because an incumbent president who “loses a very close, hotly contested election” would not “leave office peacefully” if they could be prosecuted by the incoming administration.

That he allowed an insurrectionist flag to be flown at his home, and allowed a Christian Nationalist flag to be flown at his vacation home, should have triggered his recusal from all cases dealing with Trump’s insurrection, but didn’t. You can’t fly your freak flag and pretend not to be a freak.

Alito’s strident partisan bias, entitled hubris and decades of misogynist rulings has brought the nation’s opinion of the High Court to an unprecedented low. He has bastardized the Establishment Clause of the First Amendment — a venerated shield protecting religious freedom — into a sword for inflicting his religious worldview onto others.

The weapon of federal law should be turned on him. Democrats and moderates need to make Court reform a top campaign issue, use Alito’s (and Thomas’) outrageously unethical conduct to win a sufficient majority in both chambers, and impeach them as the first order of business.

Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, The Haake, is free.


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