The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Defense of Justice Alito
Ben Aguiñaga, a former law clerk, responds to the gross media smears of Justice Alito.
The media does not fairly cover the conservative Supreme Court justices. But it is not enough to criticize their written opinions. Rather, pundits feel compelled to opine on how the Justices feel. Case in point is a recent headline from Joan Biskupic, titled "Samuel Alito keeps getting his way. So why does he seem so unhappy?" Does Biskupic have any evidence that Alito is unhappy? Did she talk to the Justice or his clerks? No, Biskupic apparently no longer has access to that sort of actual information. Instead, she based her conclusions on the Justice's facial expression on the bench. These are actual passages from a CNN article:
Alito's aggravation is regularly on display in the courtroom, too. . . .
In the courtroom, even the little things can visibly irk Alito. He often grimaces and rolls his eyes. . . .
Other justices laughed. They appear accustomed to his unguarded irritability.
Of course, these sorts of claims usually go uncontested. There is zero upside to the Justice defending himself, especially from an unfavorable media.
Fortunately, one of Alito's recent clerks has taken steps to respond. Ben Aguiñaga, the Louisiana Solicitor General, wrote a piece titled "I worked for Justice Alito. What I saw up close shatters the media smear." (I met Ben a decade ago when he was clerking for then-Justice Don Willett.)
As they say, read the entire thing. A few things stand out. First, Ben smashes this false notion that Alito is a curmudgeon.
One of the memorable parts of any clerkship is the chance to eat lunch with your judge or justice and discuss anything but work. Some jurists prefer a fancy lunch out on the town. Not Justice Alito. My fondest memories are those lunches we had around a chambers table — the clerks with box lunches or maybe a to-go plate from the cafeteria, and the justice with a bowl of Campbell's soup that he had just warmed in a microwave. The justice is famously introverted, and so, it was not uncommon for the clerks to run away with the conversation as the justice's spoon clinked against his bowl of soup. The justice was not disengaged; he was waiting for the right moment to strike with the driest humor known to Washington. He did not need to spend precious time with us at lunch — he had more important things to do. And yet he sacrificed anyway.
The Justice is an introvert to be sure, but when he chooses to speak, he chimes in perfectly with just the right sense of humor. My suspicion is that Justice Alito has little interest in engaging with elitist reporters, so they simply never see his funny side.
Second, Ben echoes a message I've heard from many Alito clerks over the years. The Justices does not actually need the clerks. He could do all the work himself. And when he asks the clerks to do work, he does so sheepishly.
Some jurists are reputed to be harsh taskmasters. Not Justice Alito. Not only did he lighten our loads at all costs, but he also never raised his voice or directed displeasure toward us. That is not because we were perfect — one time I had to apologize for turning in a memo a day late, but he did not bat an eye. To the contrary, the justice took every opportunity he could to encourage us. I remember one particularly long memo battle that we fought and won. He could have walked off with the victory. But instead, he took time to give me a thoughtful thank you note for my assistance.
I've heard some horror stories from other chambers about Justices who expect their clerks to be on call 24x7. And when a clerk messes up, the Justice does far more than bat an eye. Again, the false narratives about Justice Alito being harsh on the bench do not match the reality of how the Justice interacts with others.
Third, Ben responds directly to the Biskupic-led charge of unhappiness:
All this is why obsessive depictions of Justice Alito as "aggrieved" and "unhappy" in the media are personal to me. He is nothing like the caricature erected by those pining for clicks and likes at his expense. And it is a disservice to the justice and to the Supreme Court as an institution to perpetuate a false "aggrievement" narrative that, at this point, is exhausted from being copied and pasted too many times.
The Justice Alito I know is kind, humble, thoughtful and selfless. I know because he believed in me — and I am a better man because of his example.
I don't think Justice Alito's value is fully understood. Justices Scalia and Thomas have built up significant fan bases, in part because of their gregariousness and outgoingness. But Justice Alito is a constant and stable force for conservative jurisprudence.
Students sometimes ask me who my favorite Justice is. That question is like asking me to pick a favorite child. I love them for different reasons. I sometimes answer the question with a baseball analogy. Justice Scalia scored the most runs, with a combination of walks, base hits, home runs, and stolen bases. Justice Thomas has the most home runs, but as he always swings for the fences, he sometimes strikes out. Justice Alito has the highest on-base percentage. He does not always cross home plate or or knock it out of the park, but he consistently get on base, and almost never strikes out.
