Sam Alito, principled textualist (with notably rare exceptions and regulations)
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David Rivkin and James Taranto are happy to provide an abjectly fawning interview as part of Sam Alito’s Resentful Self-Pity World Tour. It is full of unintentionally hilarious passages like this:
By comparison with the previous eight decades or so, the court has frequently declined to defer to elite political opinion, and as a result it has made news in other ways.
Like Glenn Greenwald, the Federalist Society and their media lickspittles have created a universe in which the Princeton-and-Yale educated lawyer who holds one of the most powerful positions in the country is not “elite.”
This, however, really gets to the heart of the Federalist Society ethos:
He has emerged as an important voice on the court with a distinctive interpretive method that is rooted in originalism and textualism—adherence to the text, respectively, of the Constitution and statutes—but in some ways more pragmatic than that of Justice Clarence Thomas or Neil Gorsuch.
“More pragmatic” = “if even ‘orignialism’ and ‘textualism’ cannot be manipulated to reach results consistent with the most recent platform of the Texas Republican Party, then they must be discarded.” See also:
Justice Gorsuch has an ornery streak that has shown itself in cases involving Indian law, crime and discrimination. “He’s definitely not a consequentialist,” Justice Alito says of his colleague—meaning he is less concerned with the real-world effects of following his principles.
Not having any principles — I mean “pragmatism” — solves that problem. (Somebody yesterday. mentioned fascist pseudo-intellectual Josh Hammer’s blog about “common good originialism,” which is centrally obsessed that Neil Gorsuch had the temerity to on one occasion use his stated principles of statutory interpretation in Bostock rather than relying on the controlling authority of Libs of Tik Tok.)
Conveniently, Alito gives us a classic example in this very interview:
“I know this is a controversial view, but I’m willing to say it,” he says. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”
Hmm, I happen to have the text of the Constitution right here and:
the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The exceptions and regulations clause must be read, er, pragmatically!
I also enjoyed this bit:
Justice Alito wonders if outright defiance may be in the offing for the first time since the aftermath of Brown v. Board of Education (1954): “If we’re viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular. So you can have a revival of the massive resistance that occurred in the South after Brown.”
What a wild hypothetical! A state just openly defying a clear Supreme Court order? Can you even imagine such a thing? If it did, if would have to be because the libs have de-legitimized the Court.
…I wonder why Alito thinks that the Court should be completely unaccountable kings and queens:
David Rivkin landed a fawning on-the-record interview with Alito shortly after the Supreme Court took up Rivkin’s case seeking to roll back the federal income tax. Legendary stuff. https://t.co/GvMPBFjjVY pic.twitter.com/zCWh2ycPNw— Mark Joseph Stern (@mjs_DC) July 28, 2023