The Worst Opinions of Samuel Alito

After ranking the best opinions of the best justice, one of my readers suggested ranking the worst of the worst. I aim to please.

It’s worth noting that I’m not the only one who has been calling Alito the worst SCOTUS justice. Five months after I ranked the justices, law professor Adam Lamparello did his own ranking. Like me he put Gorsuch and Kagan at top (though Kagan first and Gorsuch second), and Alito at rock bottom. I had no idea my views aligned this closely with any expert opinion until it was recently pointed out to me.

1. Snyder v. Phelps (2011)

The issue at stake: Free speech
The ruling (8-1): The Westboro Baptists have the right to picket funerals with homophobic hate speech
Alito’s opinion: The lone dissent

I call this Alito’s worst opinion, since it shows his ignorant and unabashed contempt for the First Amendment. He’s so bothered by the negative emotive power of speech — the power of speech to distress or upset people — that he is willing to render void the most basic of American rights. In this case, the other justices ruled that homophobic hate paraders had the right to picket military funerals: a slam-dunk 8-1 decision that should have been 9-0. The four liberals and four conservatives were as one: as long as the Westboro Baptists weren’t trespassing, kept the right distance, weren’t violently disruptive, and followed police instructions, they had every right to spew their hateful bile. If there was any possible dissent here, I would have expected it from Sotomayor, since hard leftists like her often imagine that hate speech shouldn’t be protected by the First Amendment. But even she got this right. It was the conservative Christian, Samuel Alito, who went to bat for the gay man’s family: the picketers, he wrote, were not really engaging in free speech, but assault (!): their homophobia had “brutally attacked” the dead marine and his family. This opinion alone disqualifies Alito as a Supreme Court justice, as far as I’m concerned.

2. Janus v. American Federation of State, County, and Municipal Employees (2018)

The issue at stake: Union agency fees
The ruling (5-4): The extraction of agency fees from non-consenting public-sector employees violates the First Amendment
Alito’s opinion: For the majority

For my #2 slot I choose another (supposed) First Amendment case that actually has nothing to do with free speech. Alito wrote for the majority, ruling that the extraction of agency fees from non-consenting public-sector employees violates the First Amendment. Which it most certainly does not. The First Amendment wasn’t meant to undermine but to protect democratic governance. No matter how much I may disagree with the politics of my union, paying my dues in no way violates my free expression. It keeps me from being a freeloader and reaping union benefits that others pay for. The supposed violation of the First Amendment is absurd on every level. The landmark Supreme Court ruling, Abood v. Detroit Board of Education (1977) — which this case overturned — explicitly prohibited agency fees from being used to pay for political activity; the fees could only pay for collective bargaining and other apolitical services the union provides. Janus was one of the worst Supreme Court rulings of the 21st century, and it shows Alito defending the First Amendment where it has no relevance, just as he tramples on that amendment where it is relevant (see #1 above and #5 below).

3. Trump v. Vance (2020)

The issue at stake: Presidential exemption from state subpoenas
The ruling (7-2): State criminal subpoenas issued to a sitting president are not automatically blocked
Alito’s opinion: For the dissent

Alito was just kissing Trump’s ass in this case. Chief Justice Roberts wrote for the majority, arguing that the Supreme Court has always held that the president is subject to subpoena in federal criminal proceedings. There is no reason to treat state proceedings any different. The majority rejected Trump’s argument that state criminal subpoenas pose a “unique and greater threat to impair the executive’s ability to perform its constitutionally mandated functions”. Alito believed the president deserves greater protection from state law enforcement powers but offered no substantive argument.

4. Burwell v. Hobby Lobby Stores (2014)

The issue at stake: Contraception health coverage
The ruling (5-4): The Religious Freedom Restoration Act of 1993 allows a for-profit company to deny its employees health coverage of contraception based on the religious objections of the company’s owners
Alito’s opinion: For the majority

Here Alito ruled that companies are free to deny their employees health coverage of contraception if the company’s owner has religious objections to birth control. But there is no violation of freedom of religion when an infringement on that right is merely an incidental consequence of an otherwise valid statute. The landmark case of Employment Division, Department of Human Resources of Oregon v. Smith (1990) made this plain, in which Antonin Scalia had written for the majority, noting that to allow exceptions to every regulation that affected religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind” — compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws. It’s revealing that this 1990 case was upheld by a conservative majority (6-3), against the liberals who went to bat for religious objectors — Native Americans who wanted to use illegal drugs for religious purposes. Now, in Burwell v. Hobby Lobby Stores, it was the conservative majority going to bat for religious objectors — company owners who want to deny birth control in a legal health coverage plan. Whether liberal or conservative, religious objections like this are unfounded. There is plenty of judicial precedent holding that religious beliefs or observances must not impinge on the rights of third parties, and rightly so.

5. United States v. Stevens (2010)

The issue at stake: Free speech
The ruling (8-1): A federal statute that criminalized the commercial production, sale, or possession of depictions of cruelty to animals violates the First Amendment
Alito’s opinion: The lone dissent

A year before Snyder v. Phelps (see #1 above), Alito was already pulling “exceptions” to free speech out of his ass, and (as in Snyder) standing alone against a landslide majority of 8 justices. The case involved a federal statute that criminalized the commercial production, sale, or possession of depictions of cruelty to animals. The majority (four liberals, four conservatives) ruled that the statute was a violation of free speech, pure and simple and they were obviously right, not only on the general principle of free speech but sheer practicality: TV-shows portraying the hunting of animals would have to logically be criminalized according to the federal statute. Alito ignored the question of legal expression (which is what matters) and focused instead on the repulsive nature of that expression, as he personally found it. Seriously.

6. Doe v. Groody (2004)

The issue at stake: Strip-searching a mother and her 10-year old daughter without a warrant
The ruling: The search was unconstitutional
Alito’s opinion: The lone dissent

Alito was on the Circuit Court of Appeals for this case. His opinion earned him the nickname “Strip-Search Sammy”, and made his appointment by Bush to the Supreme Court in 2006 controversial. In his lone dissent he approved the body search of an innocent ten-year-old girl and her mother, saying that police officers did not violate the Constitution without a warrant that gave them permission to do this. Judge Michael Chertoff’s majority opinion correctly stated that Alito’s position would effectively nullify the Fourth Amendment’s warrant requirement and “transform the judicial officer into little more than the cliché rubber stamp”. A truly horrible dissent on Alito’s part.

7. Gundy v. United States (2019)

The issue at stake: Separation of powers
The ruling (5-4): The Sex Offender Registration and Notification Act’s delegation of authority to the Attorney General does not violate the separation of powers
Alito’s opinion: Concurrence

Unlike every other conservative on the Supreme Court, Alito has never joined an opinion with all of the liberals as a lone conservative. Except in this case… when he and the liberals were dead wrong. Alito concurred with the liberals, agreeing that the attorney general can write his own criminal code. In other words, the chief prosecutor can write the laws for crimes that he gets to prosecute, which is insane. (Gorsuch’s dissent to this ruling was spot-on.)

8. Dobbs v. Jackson Women’s Health Organization (2022)

The issue at stake: Abortion rights
The ruling (5-4): The Constitution does not confer the right to an abortion; the issue must be settled by each state
Alito’s opinion: For the majority

I decided to include this one, as it’s the opinion for which Alito will forever be famous, and for which he is either reviled or praised. And herein lies the problem. Whether you consider Dobbs to yield a good or terrible outcome rides on the question of who has the right to “life, liberty, and the pursuit of happiness”. Women faced with unwanted pregnancies, or the unborn? Pro-choice and antiabortionists each claim a high ground based on premises the other side isn’t willing to grant. And whether you consider Dobbs to be a good or bad judicial ruling rides on the question of how you weigh precedent with respect to textualism. For the first question, I give moral priority to women over the unborn that they carry. For the second, I believe judicial precedents are subordinate to the Constitution itself, and it’s admittedly not easy (though not impossible) to make a Constitutional case for abortion rights. Abortion debates will always involve uphill battles and talking past each other. If I say that I include Dobbs on this list because it represents the first time that the Supreme Court has taken away a long-entrenched (49-year) fundamental right, the antiabortionist will simply counter no, the Supreme Court has allowed states, if they choose, to restore fundamental rights to the unborn. So there you have it.

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