Bench Memos

Law & the Courts

Lefty Reporter’s Bizarre Overreaction to Alito’s Criticism

In an Atlantic article, Adam Serwer takes exceptional offense to (and claims imagined vindication from) Justice Alito’s recent Notre Dame speech responding to criticisms of the Court’s use of its emergency docket. Serwer notes that Alito read aloud from a previous article of his on the Court’s denial of the abortion providers’ request for emergency relief against enforcement of the Texas Heartbeat Act. Serwer objects that “Alito insisted that it was ‘false and inflammatory’ [for Serwer] to say [in that article] that the 1973 Roe v. Wade decision had been nullified in Texas.”

Curiously, Serwer doesn’t actually undertake to identify passages of his previous article that Alito might well have found “false and inflammatory.” How about its opening sentence:

The conservative majority on the Supreme Court was so eager to nullify Roe v. Wade, the 1973 precedent securing the right to abortion, that it didn’t even wait for oral arguments.

Or its closing paragraph:

Neutralizing Roe through normal channels would have taken time, and the Supreme Court’s conservatives did not want to wait. Thanks to the shadow docket, they didn’t have to. Five conservative justices invalidated the constitutional right to an abortion simply because they could, because they felt like it, and because they don’t believe anyone can stop them.

More broadly, Serwer found it “remarkable” in that previous piece that the Court “acted through its ‘shadow docket,’” which he claimed “now resembles a venue where the conservative legal movement can get speedy service from its friends on the Court.” But it was the abortion providers (not “the conservative legal movement”) who, on the afternoon of Monday, August 30, filed an emergency request for relief before the Texas Heartbeat Act became effective less than 36 hours later, on Wednesday, September 1. What Serwer is really complaining about is that the Court didn’t “act[] through its ‘shadow docket,’” as he wishes it had. It’s also very strange for him to fault the Court for issuing its order denying relief as soon as its order was ready, even if that happened to be “in the middle of the night” (just before midnight at the end of September 1).

Only a careful reader would discern, buried near the end of Serwer’s initial article, a hint that the effect of the Court’s order might be “temporary.” Even that reader would not know that the abortion providers could invoke Roe as a defense in any civil-enforcement actions brought against them.

Without providing any further evidence to support his tirade in his new article, Serwer ridiculously contends:

[Alito] wanted to act like a GOP-primary candidate and wag his finger at the press, and he did so with a level of dishonesty and obfuscation you might expect from a politician. I have had more honest interlocutors on Twitter, people whose handles were puns on bodily secretions. Alito’s claims were below the level of what you would find in a Facebook thread from an anti-vax group. It is a style of argument that belongs at a Thanksgiving dinner with exasperated blood relatives in New Jersey.

And, yes, there’s even more of that dismal quality.

In short, both of Serwer’s articles can fairly be characterized as false and inflammatory.

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