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
And it could catapult Alito, once best known for mouthing “not true” during President
Supporters describe Alito, 72, as a man whose core beliefs haven’t changed much since he was tapped in 2005 by President
“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
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
“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
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.”
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