Bench Memos

Bazelon’s Weak Attack on Justice Alito

In an essay in the New York Times Magazine, Emily Bazelon launches an attack on Justice Alito. Her primary claim is that Alito has deployed “selective empathy … in the service of piling vote upon conservative vote.” More broadly, she asserts that “Alito makes his mark by getting to the outcomes conservatives favor with whatever tool is at hand and with even more predictability.” But she badly fails to substantiate either claim.

Let’s start with Bazelon’s contention about Alito’s supposed “selective empathy.” Specifically, Bazelon asserts that Alito “has proved himself to be the closest thing conservatives have to a feelings justice,” and she complains that Alito “expresses feelings mostly for people who are a lot like him.”

Bazelon’s lead piece of evidence is Alito’s recent dissent in Snyder v. Phelps, where, she claims, he “placed himself in the position of the father” of the soldier whose funeral was being picketed. But, as I discussed last week in response to a similar claim, Alito read the Supreme Court’s ruling in Chaplinsky v. New Hampshire as recognizing that the First Amendment does not protect “utterances that form ‘no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” (Internal quote from Chaplinsky.) Specifically, he took the position that the “very narrow” tort action for intentional infliction of emotional distress does not collide with the First Amendment merely because the emotional distress is inflicted via verbal attacks. In other words, he differed from the majority in his determination of the legal framework that should govern the First Amendment claim, and his discussion of the outrageous conduct of the funeral picketers was warranted within that legal framework.

To be sure, a critic could speculate that Alito adopted the legal framework that he did out of “empathy” for the soldier’s father. But Bazelon doesn’t even try to make that argument. And no wonder: For, as many have noted, Alito’s solo dissent in Snyder can be paired with his solo dissent last year in United States v. Stevens, in which Alito rejected a First Amendment overbreadth challenge to a federal statute that, as he put it, “was enacted not to suppress speech, but to prevent horrific acts of animal cruelty—in particular, the creation and commercial exploitation of ‘crush videos,’ a form of depraved entertainment that has no social value.” Bazelon doesn’t even mention Alito’s dissent in Stevens, presumably because it doesn’t fit her claim that Alito “expresses feelings mostly for people who are a lot like him.” (Last I checked, Alito didn’t seem “a lot like” the kittens that were stomped to death in crush videos.) Snyder and Stevens together indicate that Alito has a narrower view than other justices of the outer bounds of First Amendment speech protection, not that he is indulging his own sense of empathy in determining what those bounds are.

Bazelon claims that Alito “sounded a similar note” of empathy in his concurring opinion two years ago in Ricci v. DeStefano, in which he very briefly referred to the “personal sacrifices” that New Haven firefighters had made in order to qualify for promotion. But she fails to note that Alito expressly rejected the notion that the firefighters were entitled to judicial sympathy:

But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

In short, Bazelon offers no evidence that Alito has deployed empathy at all, much less that he has done so selectively.

Now let’s consider Bazelon’s broader assertion that “Alito makes his mark by getting to the outcomes conservatives favor with whatever tool is at hand and with even more predictability.” Bazelon offers at most a single piece of supposed evidence that Alito uses “whatever tool is at hand” to reach “the outcomes conservatives favor”: his vote in the Citizens United campaign-finance case. But Bazelon’s complaint that Alito “wasn’t moved by the idea of curtailing the First Amendment to protect other values, like preventing political corruption,” ignores the fact that the restrictions at issue in Citizens United (unlike in Snyder or Stevens) penalized election-related speech, which has long been understood to be at the core of the First Amendment.

As for Bazelon’s claim that Alito is predictable in a partisan political manner: The general but very limited statistical evidence she cites does not meaningfully counter the presumption that Alito’s “consistency” flows from his judicial approach rather than from  his political preferences. And it’s those on the Left with far more malleable judicial methodologies—and with a much broader record of discovering constitutional rights that comport with their political preferences—who ought to be far more vulnerable to a charge like Bazelon’s.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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