Faulty reasoning signals

• Confirmation Bias - 4.6% (206 hits)
• Anchoring Bias - 0%
• Availability Heuristic - 7.7% (343 hits)
• Representativeness Heuristic - 3.6% (159 hits)
• Hindsight Bias - 4.3% (193 hits)
• Overconfidence Bias - 0.9% (42 hits)
• Framing Effect - 3.5% (155 hits)
• Loss Aversion - 0%
• Status Quo Bias - 0.7% (32 hits)
• Sunk Cost Effect - 1.2% (53 hits)
• Optimism Bias - 0%
• Pessimism Bias - 1% (45 hits)

Article text

What Makes Sam Alito So Angry?

The last day of the Supreme Court term proved to be eventful for Justice Samuel Alito.

While no one was surprised that he dissented from the Court’s decision invalidating President Donald Trump’s executive order limiting birthright citizenship, there was also a mistaken National Public Radio report, promptly retracted, that Alito had announced his retirement.

With the midterm elections later this year, the commentariat had speculated that perhaps the 76-year-old Alito would retire to ensure that a Republican Senate would be in place to confirm the president’s nominee before November.

Alito, to be clear, did not say or do anything to prompt this speculation.

Why would Alito leave the Court now?

With its current 6-3 conservative supermajority, not much stands in the way of the Court’s ongoing efforts to revise the law of the land.

The Trump administration may have lost the birthright citizenship case, but it nevertheless prevailed the week before in two cases in which the Court agreed with the administration’s restrictive interpretations of federal immigration law.

Alito was the author of the Court’s principal opinion in both cases.

Although it may not be apparent from the sense of grievance Alito often projects, the Court has been moving steadily rightwards since he was appointed more than two decades ago.

More than any other justice, except perhaps Clarence Thomas, Alito has supported that project by voting consistently with the Court’s right wing.

In Revenge for the Sixties: Sam Alito and the Triumph of the Conservative Legal Movement, Peter S.

Canellos traces the roots of Alito’s conservativism to the turbulence of the 1960s, shows how the son of an Italian immigrant father and a first-generation Italian-American mother advanced to the highest tiers of the legal profession through the support of the Federalist Society, and describes how Alito has helped the Court shift the law significantly to the right since his appointment.

This portrait of Alito is familiar to those who follow the Supreme Court, largely because of his authorship of the opinion in Dobbs, which overturned Roe v.

Wade.

Perhaps the most interesting part of Canellos’s book, then, is his account of Alito’s confirmation hearing.

In late 2005 and early 2006, President George W.

Bush and the Senate were navigating the shifting terrain of Supreme Court confirmations: Partisanship was high, but scorched-earth tactics were not yet the norm.

For conservatives, Alito represented a reliable choice.

For Democrats, Alito presented a challenge: though they knew the Third Circuit jurist would move the Court to the right and suspected he would vote to overrule Roe, there was no smoking gun to confirm those suspicions.

The Senate confirmed Alito by a 58-42 vote.

Given the consistency of his views over time, perhaps the biggest mystery of Alito’s professional life has been his transformation from a “shy and straitlaced” young man to the vocal justice who, in Canellos’s words, has “hastened to make his voice heard,” especially in the “face of perceived slights.”

What happened along the way to turn him into perhaps our most aggrieved justice?

Canellos situates Alito’s life story amid the history of the nation’s leading institutions: the Supreme Court since Earl Warren was chief justice; Ivy League universities—notably Princeton University and Yale Law School, which Alito attended—during the Vietnam War, which saw rise of the student counterculture and the emergence of feminism; and the response to these developments by President Ronald Reagan’s administration, in particular its supporters in the Federalist Society, the most important legal organization of the last half century.

It’s a fascinating story, and Canellos tells it well.

Occasionally, the narrative for a biography of Justice Alito seems to digress.

For example, as Alito did not attend Harvard Law School, it seems a bit unnecessary to spend five pages discussing the Critical Legal Studies movement there during the 1980s and early 1990s.

Quibble made, let’s turn to the justice.

The history of the Alito family in New Jersey is a familiar story of 20th-century immigration.

The Justice’s grandfather left Calabria in southern Italy in 1913, arrived in Trenton, New Jersey, and then sent for his wife and son, Salvatore.

The couple had three more children.

Salvatore, whose name was anglicized to Samuel, married Rose Fradusco, the daughter of another Italian immigrant family, in 1948.

The couple worked hard, moved to nearby Hamilton Township, and had two children—the first, a son born in 1950, whom they named Samuel Jr.

The Alitos prioritized education while raising him and his sister, Rosemary, in a close-knit Catholic family.

Sam Jr. excelled at his public high school, where, among other things, he debated and edited the Hy-Liter, the school newspaper, during his senior year.

Canellos illustrates the conservatism of Steinert High by quoting from an editorial in the Hy-Liter two months after the riots in Trenton, which followed the assassination of Martin Luther King, Jr., in April 1968.

“Today’s laws are broken like New Year’s resolutions,” the editorial argued.

According to Canellos, the newspaper was warning students “of dangers beyond their suburban oasis” and showed that “[t]heir secure, orderly way of life was under threat.”

When Alito matriculated at an all-male Princeton in the fall of 1968, the campus was in a state of ferment verging on turmoil.

The university decided to admit women in the fall of 1969, transforming social life at the school.

“In dorm-room conversations,” according to Canellos, Alito “defended his belief in refraining from sex before marriage.”

During the late 1960s, the escalation of the Vietnam War prompted student protests nationwide.

President Nixon’s draft lottery, held in late 1969, and the United States’ invasion of Cambodia in 1970 generated campuswide protests at Princeton and elsewhere that resulted in clashes with police.

Alito did not participate in the protests.

He did, however, join the Reserve Officers’ Training Corps (ROTC), which would prepare him to become an officer—thereby giving him more control over his military assignment and allowing him to earn course credits.

However, after ROTC offices were firebombed after a massive campus rally in May 1970, the faculty voted to end the program.

As part of his officer training, Alito took military courses at Trenton State College.

(Subsequently, Princeton reinstated Army ROTC as a non-credit program after a student referendum in 1972.)

One response to the dominant liberal culture on campus was the formation of the Conservative Alumni of Princeton (CAP).

Alito became a member, though not a vocal one.

After Alito graduated from Princeton in 1972, he was “commissioned a second lieutenant in the Army,” according to The Washington Post, “delayed starting military duty until after graduating from Yale Law School in spring 1975,” then “served on active duty from September to December, receiving training as a signal officer at Fort Gordon, Ga.”

He is the only military veteran on the current Court.

At Yale Law, the culture clash continued for Alito after he was assigned to Professor Charles Reich’s constitutional law class.

A former law clerk to Justice Hugo Black and author of the best-selling The Greening of America, Reich embodied the counterculture that left Alito so alienated at Princeton.

He asked to be assigned to another class—Robert Bork’s—but his request was denied.

In law school, as at Princeton, Alito worked hard and kept his personal views to himself.

An editor on the Yale Law Journal, he served as a teaching assistant for a constitutional law course and received several prizes at graduation.

Alito was in law school when the Supreme Court decided Roe v.

Wade in 1973.

Faculty and students discussed the case’s reasoning extensively.

Among the critics of Roe was John Hart Ely, a liberal law professor who had clerked for Chief Justice Earl Warren.

In an article entitled “The Wages of Crying Wolf,” Ely disparaged Roe for lacking “even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine.”

Nearly five decades later, “Wages” would be the first law review article cited by Alito in his Dobbs opinion.

The middle passage of Canellos’s book tells two intertwined stories.

Together, they explain why we now have an aggressively conservative Supreme Court.

The first is the rise of the Federalist Society, a development that traces back to a 1982 conference at Yale Law School.

The roster of speakers included Antonin Scalia, Richard Posner, Charles Fried, and Ted Olson—conservative luminaries who held, or would go on to hold, prominent positions in the federal government.

The biggest star, Canellos suggests, was now-Judge Bork, who had just been appointed to the United States Court of Appeals for the D.C.

Circuit by President Ronald Reagan.

At the conference, Bork railed against the Supreme Court for imposing “upper-middle-class values on society.”

As inspiring as the speakers were in articulating a conservative vision to seize the legal ramparts, the most important aspect of the gathering was its organizational nature.

The Federalist Society set up chapters on other campuses, held conferences, and developed a network that helped put conservative lawyers on the federal bench and in key Justice Department positions.

Attorney General Edward Meese spoke at chapters to extol the virtues of originalism—an approach, he said, that was “rooted in the text of the Constitution as illuminated by those who drafted, proposed, and ratified it.”

The influence of the Federalist Society on President Reagan’s administration intersects with Canellos’s second story, the journey of Samuel Alito to the Supreme Court.

After law school, Alito clerked for Judge Leonard I.

Garth on the Third Circuit, served as an assistant United States attorney in New Jersey, and then moved to Washington, D.C., in 1981 to work as an assistant to the Solicitor General.

Along the way, he married Martha-Ann Bomgardner, whom he met when she was a librarian in the U.S.

Attorney’s office in New Jersey and he was working as an AUSA.

Martha-Ann was as lively socially as Samuel was reserved.

Canellos recounts that they met in the library, but it took “a good year” before the “taciturn” Alito would converse with her.

After President Reagan was re-elected in 1984, he selected Meese to replace William French Smith as attorney general.

Meese named Chuck Cooper to head the Department of Justice’s Office of Legal Counsel, the office responsible for providing legal advice to the President and executive branch agencies.

Cooper wanted Alito to serve as his principal deputy.

Still, there was a “problem: no one in Meese’s inner circle knew or trusted Alito,” given his close ties to Solicitor General Rex Lee.

As Canellos explains, Lee was suspect because he was, in Cooper’s words, “not with the [Department’s] program” during Reagan’s first term—for example, Lee had not moved aggressively enough to challenge affirmative action quotas.

(In a case of the apple falling a bit far from the tree, Rex Lee was the father of Utah Senator Mike Lee, a devoted ally of President Trump who, among other things, recently introduced legislation “to stop federal agencies from violating the Constitution and awarding contracts based on recipients’ race or sex.”)

Cooper asked Alito to write a memo explaining his conservatism.

Alito began, “I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this Administration,” and expressed his belief in, among other things, “the legitimacy of a government role in protecting traditional values.”

Alito’s memo highlighted his “contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion” and noted his membership in “Concerned Alumni of Princeton University, a conservative alumni group.”

This 1985 memo would resurface during Alito’s Supreme Court confirmation hearing two decades later.

Alito got the job as Cooper’s deputy, serving for two years.

Then, President Reagan appointed him as the United States Attorney for New Jersey.

He was well-suited for the position.

As Canellos observes, “His native reserve dovetailed perfectly with a prosecutor’s need for discretion, and his tendency to find simple truths in complicated issues made him an effective communicator.”

Soon after his appointment in 1987, Alito earned the respect of the office by personally trying the case of a defendant charged with attempted murder of an FBI agent and securing a conviction.

Alito’s tenure as U.S.

Attorney began around the same time that Rudolph Giuliani, a “self-described crimefighter” and U.S Attorney for the Southern District of New York, was becoming “a household name across the Hudson River for convicting seventeen mobsters” for importing narcotics “in the so-called Pizza Connection trial.”

Where Giuliani courted the tabloids, Alito was resolutely low-key.

Like Giuliani, Alito squared off with organized crime in several cases, including “the prosecution of a powerful underboss named John Riggi, who allegedly controlled labor unions and large segments of the construction industry.”

As Canellos notes, Riggi was convicted of extortion, but not racketeering, and was reputed to be “the inspiration for the TV character Tony Soprano.”

Decades later, at an event celebrating Rutgers University’s Italian Studies program, Justice Alito criticized The Sopranos for perpetuating negative images of Italian-Americans.

Alito served as U.S.

Attorney for three years, then was nominated by President George H.W.

Bush to serve on the United States Court of Appeals for the Third Circuit.

Alito represented “a model of low-key competence,” Canellos writes, and New Jersey’s Democratic Senators Bill Bradley and Frank Lautenberg supported the nomination.

The Senate confirmed Alito for the bench by a voice vote.

Alito served on the Third Circuit for fifteen years.

He distinguished himself on the court with his “low-key demeanor” and conservative voting record.

When Justice Sandra Day O’Connor announced her retirement in July 2005, Alito made the short list of possible nominees to meet with President George W.

Bush, as did John Roberts, whom Bush had appointed to the D.C.

Circuit in 2003.

Roberts had an extraordinary resume and won the President over with “an aura of warmth and ease” that Alito lacked.

Then Chief Justice William Rehnquist died in early September 2005.

For the Supreme Court in this century, Rehnquist’s death was the gear in the machinery that shifted.

President Bush now had two Supreme Court seats to fill and nominated Roberts to be chief justice.

Roberts dazzled the Senate at his confirmation hearings and was easily confirmed by a 78-22 vote.

The path for a suitable nominee to replace Justice O’Connor was narrow.

In the deliberations before Rehnquist’s death, certain parameters were established, informed by the Senate’s rejection of Judge Bork for the Supreme Court in a brutal confirmation fight in 1987.

Public opposition to Roe was disqualifying; nominating such a candidate would prompt political warfare.

That removed Judges Edith Jones and Michael McConnell, prominent judges on the federal courts of appeals, from consideration.

So was the risk of “being susceptible to liberal influences” and turning out to be another Justice Anthony Kennedy.

That ruled out Judge J.

Harvie Wilkinson III, another accomplished judge on the federal court of appeals.

President Bush dared to think outside the box.

In early October 2005, he nominated White House counsel Harriet Miers to replace O’Connor.

A president had not put forward a nominee to serve on the Supreme Court who was not a sitting judge since 1971, when President Richard Nixon had nominated Rehnquist, his head of the Office of Legal Counsel, and Lewis F.

Powell, Jr., an accomplished attorney in private practice.

Ardent conservatives, including members of the Federalist Society, denigrated Miers, prompting her to withdraw from consideration less than a month after she was proposed.

After Miers withdrew, President Bush nominated Alito, who passed muster with the right.

The stakes at his confirmation hearing were high: Roberts succeeding Rehnquist as chief justice seemed to be a wash, but Alito replacing the moderate O’Connor would move the court to the right.

Alito’s candidacy received a boost from Judge Edward Becker, his colleague on the Third Circuit, who lobbied hard for his confirmation with Arlen Specter, the Pennsylvania Senator who chaired the Senate Judiciary Committee.

Becker also testified on Alito’s behalf, insisting that the “Sam Alito I have sat with for 15 years is not an ideologue.”

Several Democratic Senators pressed Alito hard and criticized him.

The most focused attack came from Senator Ted Kennedy, who had led the liberal attack against Judge Bork in 1987.

As Canellos recounts, Kennedy zeroed in on Alito’s membership in CAP, the conservative Princeton alumni group, insisting that the judge was a member of a radical group and that he had not been candid in his testimony about the organization.

After Kennedy concluded his questioning, Senator Lindsay Graham sought to help Alito by asking friendly questions and saying he credited Alito’s testimony because “of the way you have lived your life and the way you and your wife are raising your children.”

During this exchange, the defining moment of the hearings occurred: Alito’s wife, Martha-Ann, began “to sob, at first softly and then louder and louder, before fleeing the room in tears.”

This unscripted drama generated sympathy for Alito and his family.

At the same time, Kennedy and his Democratic colleagues neither produced the equivalent of a smoking gun to discredit Alito nor persuaded the public that he was well outside the jurisprudential mainstream as they had with Judge Bork.

The Senate confirmed Alito by a 58-42 vote.

Four Democratic senators—all from states that Bush won in 2000 and 2004—joined 54 Republican senators in voting to confirm, while one Republican senator, Lincoln Chafee of Rhode Island, a Democratic stronghold, voted against Alito.

Hindsight is 20/20, but there was no way for Democrats to block Alito’s confirmation in 2006.

It was apparent from Alito’s record on the Third Circuit and his 1985 memo that he would be a devout conservative.

But as a court of appeals judge, he had followed the law; there were assurances that he would not be an ideologue, and the confirmation process had not yet become completely partisan.

Indeed, nineteen Democratic senators joined their Republican counterparts in voting to end debate and thereby prevent a filibuster of the nomination.

The motion to invoke cloture passed by a 72-25 vote—easily more than the 60 votes needed to end the filibuster.

Alito joined the Supreme Court on January 31, 2006, and the rest has been history: one conservative vote after another, along with an occasional contretemps in which Alito fans his conservative plumage.

As to the former, in the most important cases before the Court, he consistently has cast a conservative vote, sometimes writing the Court’s opinion.

Alito has voted to expand Second Amendment protections for gun owners and wrote the Court’s opinion in McDonald v.

City of Chicago in 2010, which held the Second Amendment applies to states.

Alito has played a leading role in the Court’s weakening of the separation between church and state in favor of accommodating or protecting the expression of religious views.

Most notably, he wrote the Court’s opinion in Burwell v.

Hobby Lobby Stores, Inc., which held that under federal law, closely held corporations may decline to “provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.”

Alito has supported the Roberts Court’s campaign to constrain the administrative state.

In 2019, in a case not discussed by Canellos, Alito wrote a concurrence in Gundy v.

United States in which he stated he was open to reconsidering the Court’s approach to reviewing Congress’s broad delegations of rulemaking power to administrative agencies.

His brief opinion reflected nothing more than the ability to count to five: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort,” he wrote.

Three years later, Alito joined Chief Justice Roberts’ majority opinion, adopting a more restrictive approach to congressional delegation of rulemaking authority to agencies and applying the major questions doctrine (MQD) to invalidate the EPA’s Clean Power Plan, adopted when Barack Obama was President.

The MQD, as Professor Peter Shane has writte, requires government officials who undertake novel administrative initiatives of unusual economic and political significance to cite statutes that authorize their initiatives “clearly.”

While President Joseph Biden was in office, Alito voted with the majority to invalidate two measures—one involving the EPA’s clean power rule, the other involving Biden’s student loan forgiveness plan.

This year, however, Alito declined to join the majority in the recent tariffs case, in which the Court set aside President Trump’s tariffs under the International Emergency Economic Powers Act (IEEPA).

There was a debate over whether the MQD authorized the President’s tariff orders.

Alito did not write an opinion but joined Justice Brett Kavanaugh’s dissent, which argued that Congress, in fact, had authorized the President to impose tariffs.

Alito effectively voted against affirmative action, joining the majority in Students for Fair Admissions, Inc. v.

Harvard in 2023, which essentially ended the practice in college admissions because it constituted unconstitutional racial discrimination.

He has helped dismantle the Voting Rights Act, most recently with his opinion in Louisiana v.

Callais.

And, of course, Alito wrote the majority opinion in Dobbs, bludgeoning the reasoning in Roe and insisting that neither that case nor a subsequent Supreme Court decision in 1992 upholding the constitutional right to abortion involved the sort of “concrete reliance interests” that warrant their retention.

None of Alito’s votes in these cases was unexpected.

What has been surprising, as Canellos shows, is that the socially reticent lawyer and low-key court of appeals judge became such an angry, vocal champion of his views.

As much as anything else, Alito conveys a sense of grievance.

He has given speeches warning darkly about the threats to religious liberty posed by secular society, even as the Court has ruled in favor of protecting religious expression.

At oral argument, Alito is an incisive questioner.

But what has distinguished him from other justices in that forum is his exasperation—rolling his eyes or shaking his head when he disagrees with another justice’s opinion or the answers given by an attorney at oral argument.

As the Court has become increasingly politicized in the Trump era and the personal conduct of justices has come under greater scrutiny, Alito has stood his ground.

In 2024, The New York Times reported that an upside-down flag—a symbol of the false claim that President Biden had stolen the 2020 election, according to the Times—had flown outside the Alitos’ home in Alexandria, Virginia, just weeks after the attacks on January 6, 2021.

In a subsequent article, the Times reported that in 2023, another flag associated with the January 6 attacks had flown at the couple’s vacation home on Long Beach Island in New Jersey.

In May 2024, Alito provided a written response to members of Congress seeking his recusal from two cases raising issues related to the January 6 attacks.

Alito explained that his wife had flown the flag at their Virginia home and insisted that she “has the legal right to use the property as she sees fit.”

As to the flag flown at their New Jersey vacation home, Alito similarly stated he “had no involvement in the decision to fly that flag.”

The Times noted that some legal ethics experts believed that the Alitos flying the flags at their homes created the impression of expressing a political opinion and therefore violated judicial ethics rules that “seek to avoid even the appearance of bias.”

Alito denied that the flag incidents required his recusal and sat on both cases—voting with the majority in favor of former President Trump in a case regarding the scope of his immunity from prosecution for his role in the Jan. 6 attacks in one case, and voting with the majority to narrow the scope of a federal criminal law under which Trump and other Jan. 6 defendants had been charged in another.

In a speech earlier this year, Chief Justice Roberts insisted upon the distinction between law and politics, saying the public mistakenly views the justices as “truly political actors.”

Roberts certainly is entitled to make his case for the Court’s legal legitimacy, but just as certainly, the flags flying at the Alitos’ homes from the chief justice’s claims, and indeed, may be one reason why some view the justices as politicians in robes.

Along with the previous instances in which Alito has conveyed his sense of partisan grievance, just one more is worth noting: After Dobbs, Alito took a victory lap in a speech in Rome that summer, mocking foreign leaders who had criticized the Court’s decision.

As The Washington Post recounted:

One of these was former [United Kingdom] prime minister Boris Johnson.

But he paid the price,” Alito joked, to applause from the crowd.

Johnson has been embroiled in scandal, and this month announced plans to step down…

The audience laughed at what Alito sarcastically said was the most hurtful criticism from Britain’s Prince Harry.

“But what really wounded me — what really wounded me — was when the Duke of Sussex addressed the United Nations and seemed to compare the decision whose name may not be spoken with the Russian attack on Ukraine,” Alito said.

That Alito was able to crow about Dobbs and is so often in the majority in the Court’s most controversial cases is due, in substantial part, to the Federalist Society.

After Alito’s appointment, Trump appointed three conservative justices in his first term—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—who were members of the organization and promoted to the Court accordingly.

With all of this winning, why is Alito so aggrieved?

Canellos says that the change in the justice’s public persona appears to be due, at least in some part, to the rough and tumble of the Senate confirmation hearings.

This experience was bruising for both Alito and his wife.

More broadly, Canellos suggests that having ascended to the Supreme Court, the court of last resort, Alito has had no reason to restrain himself from articulating grievances accumulated over a lifetime.

The author quotes one former college and law school classmate as saying, “I think some slice of what is behind Sam being who he is now is a reaction to behaviors and conduct by the probably overwhelmingly privileged rich folks who could do what they wanted without consequences, and doing things that Sam viewed as disrespectful of things that Sam cared about.”

With this year’s midterm elections, there was speculation that Alito and Justice Clarence Thomas, the court’s oldest justices, might retire to allow President Trump to nominate their replacements, whom the Republican Senate would confirm.

However, neither has plans to retire.

This will allow Alito to continue waging the legal and cultural wars he has fought since joining the Supreme Court twenty years ago.