Alito Abortion Draft Pushes Little-Known Justice Into Spotlight
Supporters describe Justice Samuel Alito as a man whose core beliefs haven't changed much since he was tapped in 2005 by President George W. Bush to succeed the retiring Justice Sandra Day O'Connor.
May 06, 2022 at 01:42 PM
5 minute read
Justice Samuel Alito mostly avoided the limelight for 16 years, even while being arguably the most conservative member of the U.S. Supreme Court. But that low profile is changing after he authored a draft opinion that would overturn the landmark abortion-rights ruling Roe v. Wade.
The opinion, if finalized, promises to be one of the most momentous in U.S. history, toppling a 1973 decision that has since allowed tens of millions of women to legally end pregnancies. The leaked draft also raises questions about Supreme Court precedents that protect other rights, including same-sex marriage and contraception.
And it could catapult Alito, once best known for mouthing "not true" during President Barack Obama's 2010 State of the Union address, to a new level of prominence: despised by some, revered by others.
Supporters describe Alito, 72, as a man whose core beliefs haven't changed much since he was tapped in 2005 by President George W. Bush to succeed the retiring Justice Sandra Day O'Connor. Alito's confirmation the following year instantly shifted the court to the right.
"He's known from the start that he would never be accepted by kind of the mainstream liberal society and he's never tried for that kind of acceptance," said Alexander Volokh, a former Alito law clerk who teaches at Emory University School of Law. "So he's basically proud of staking out what he believes in as a conservative opinion."
What's changed since his appointment is the court has grown more conservative around him, giving Alito the votes as well as the seniority to write far-reaching opinions. He wrote the 2018 decision that said government employees have a constitutional right not to pay union fees and the 2014 ruling that said closely held companies can refuse on religious grounds to offer their workers birth-control coverage.
"He remains the most consistently conservative justice on a court that now includes six incredibly conservative justices," said Brianne Gorod, chief counsel of the progressive Constitutional Accountability Center. "Whereas other justices will occasionally vote in ways that are seemingly at odds with their ideological preferences, Justice Alito almost never does."
Critics and supporters alike say Alito felt aggrieved by his 2006 confirmation battle. Though his hearing was tame relative to those of some of his future colleagues, it included 49 questions about his membership in a Princeton University alumni group that questioned the admission of women and allegedly unqualified minorities. His wife, Martha-Ann Alito, at one point left the hearing room in tears as Republican Sen. Lindsey Graham of South Carolina defended the nominee.
Alito has since voiced that sense of grievance in other contexts. In opinions and speeches alike, he has cast Christians and other religious people as being unfairly castigated for opposing gay marriage and birth control.
"For many today, religious liberty is not a cherished freedom," he said in a pointed 2020 speech before the conservative Federalist Society. "It's often just an excuse for bigotry, and it can't be tolerated, even when there is no evidence that anybody has been harmed."
He has similarly lashed out against what he perceives to be unfair criticism of the Supreme Court. When Obama used his 2010 State of the Union to denounce the just-issued Citizens United campaign finance opinion, saying the decision "reversed a century of law" to allow more corporate money into U.S. elections, cameras caught a grimacing Alito shaking his head and muttering "not true" as Democratic lawmakers behind him rose to cheer the president.
And in a speech last year at Notre Dame University, Alito decried use of the "catchy and sinister term 'shadow docket'" to describe the emergency orders that have become an increasingly large part of the court's work, often producing important rulings without oral argument.
"This portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution," he said.
So far, Alito's increasing prominence hasn't resonated much beyond legal circles. In a Marquette Law School poll conducted in March, only 26% of people surveyed said they knew enough about Alito to give an opinion, lower than all but one other justice. Among the respondents, 16% had a favorable opinion, 10% an unfavorable view.
But the abortion opinion now stands to be Alito's legacy-defining moment. His draft, which the court has confirmed as authentic, blasted Roe as "egregiously wrong and deeply damaging" and said the abortion right is neither explicitly laid out in the Constitution nor "deeply rooted in the nation's history and traditions."
The court in Roe "usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people," Alito wrote.
Volokh said his former boss had done a "very careful job" with the draft.
"I was pleasantly surprised by the opinion," he said. "I found it very well-reasoned. So I think that this is kind of classic Alito."
But Gorod said the opinion was classic in another sense. Alito, she said, has "demonstrated repeatedly that he is willing to disregard both constitutional text and history and Supreme Court precedent if they are at odds with his ideological agenda."
Greg Stohr reports for Bloomberg News.
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllFederal Judge Approves Harvard's Dismissal of Chip-Patent Suit Against Samsung
2 minute readSEC Official Hints at More Restraint With Industry Bars, Less With Wells Meetings
4 minute readTrending Stories
- 1Ex-Kline & Specter Associate Drops Lawsuit Against the Firm
- 2Am Law 100 Lateral Partner Hiring Rose in 2024: Report
- 3The Importance of Federal Rule of Evidence 502 and Its Impact on Privilege
- 4What’s at Stake in Supreme Court Case Over Religious Charter School?
- 5People in the News—Jan. 30, 2025—Rubin Glickman, Goldberg Segalla
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250