The Volokh Conspiracy

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Justice Alito Preempts ProPublica "Investigative Journalism"

"ProPublica has leveled two charges against me. . . . Neither charge is valid."


ProPublica styles itself as "an independent, nonprofit newsroom that produces investigative journalism with moral force." Let me translate "moral force" for you: ambushing conservatives with misleading accounts of dated accusations that, at worst, concerned good faith attempts to comply with the rules. I've lost count of the number of times that wild accusations against Justice Thomas have fallen apart. I think the only upshot of this breathless reporting is that the public has become tired/bored/numb to this "moral force."

ProPublica's latest research target is (you guessed it) Justice Alito. On Friday, ProPublica contacted Justice Alito, and asked him to respond to questions by a deadline of noon EDT Tuesday. Justice Alito provided such a response–in the Wall Street Journal.

Alito's decision was a masterstroke. Rather than providing comments to ProPublica, which can be cherry-picked and quoted out of context, Alito spoke directly to the public. Indeed, I long ago decided that if any outlet were running a hit job on me, and asks me for comment, I would pre-empt their story and post my reply on the blog. Alas, most of the hit jobs on me never bother seeking comment. But such is life.

Why did Alito speak directly to the public? Because there is a sustained movement to destroy the Supreme Court. In the past, the Court could have expected members of the Bar and the Academy to defend the Court. But no longer. Because five justices had the audacity to let the people cast votes on abortion (and in the past year, that decision has overwhelmingly resounded in favor of Democrats), the Supreme Court must be obliterated. I think several of the Court's moderates are swinging left this term to forestall more attacks. Who would have predicted that Justice Sotomayor would be the Justice in the majority the most on 6-3 "conservative" Court? Stay tuned for the affirmative action cases.

I have described Justice Alito as the heart of the Supreme Court. He defends the Supreme Court in ways that Chief Justice Roberts simply cannot.

I'll write more on this issue when I finally see the ProPublica allegations. One point to flag. Justice Alito offered a factual rebuttal to ProPublica's "investigative journalism." Apparently, ProPublica alleged that Alito was served wine that cost more than $1,000 at some luxury resort. Alito claims that accusation is "misleading." And who are you going to believe? ProPublica's shoddy reporting in the past has undermined any benefit of the doubt. On a personal note, a reporter from ProPublica contacted me last week seeking comment. I never even hit reply.