Margaret Talbot has a very long (nearly 12,000-word) profile of Justice Alito in the New Yorker. Much of Talbot’s profile is interesting, and she provides ample support for her thesis that Alito was shaped by his aversion to the “countercultural protests and the antiwar activism of the nineteen-sixties and seventies.” But her intertwined contentions that Alito is “angry” and “aggrieved” and that those emotions drive his judicial decision-making rely heavily on her very one-sided assessments.
Consider what Talbot has to say about Alito’s opinion in Dobbs.
Talbot contends that “from start to finish” Alito’s opinion in Dobbs “sounded cantankerous and dismissive.” But Alito actually begins his opinion by observing that “Abortion presents a profound moral issue on which Americans hold sharply conflicting views,” he makes essentially the same point at the end, and he devotes the bulk of his opinion to demonstrating dispassionately that the Constitution leaves abortion policy to “the people and their elected representatives.”
Here is the evidence that Talbot offers of Alito’s supposed “cantankerous and dismissive” tone:
“Roe was egregiously wrong from the start,” Alito declared. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.” He likened Roe to Plessy v. Ferguson, the notorious decision upholding segregation; approvingly cited centuries-old common law categorizing a woman who received an abortion after “quickening” as a “murderess”; and used the inflammatory word “personhood” when describing “fetal life.”
Let’s take this piece by piece. The first two sentences that Talbot quotes are from Alito’s summary of why the doctrine of stare decisis does not compel adherence to Roe, and, although Talbot’s typical reader won’t know it, they set forth conventional stare decisis elements that Alito proceeds to explain over more than 30 pages.
By saying that Alito “likened Roe to Plessy v. Ferguson,” Talbot might leave the reader with the impression that Alito was broadly “liken[ing]” abortion to segregation. But Alito cited Plessy—overturned more than 50 years later by Brown v. Board of Education and its progeny—in explaining that stare decisis is “not an inexorable command” and that the “nature” of the earlier error matters.
Talbot extracts the term “murderess” from a parenthetical in a footnote in a section in which Alito is arguing only that abortion was a crime at common law at least after quickening, not that it was categorized as murder. Alito’s parenthetical actually states that the cited source says that English law “treat[ed] a woman who aborted a ‘quick’ child ‘as if she were a murderess.’” (Italics added.) In using the counterfactual subjunctive, the source is not “categorizing” the woman as a “murderess.”
Talbot gives the impression that Alito was assigning “personhood” to “fetal life.” But Alito was actually explaining that the Dobbs holding was not based on any theory of “when the rights of personhood begin” but that the dissent’s position was. (Moral philosophers who routinely debate the personhood of unborn human beings will be surprised to discover that the term is “inflammatory.”)
Talbot also objects to Alito’s “chilling reference to an insufficient ‘domestic supply’ of adoptable infants.” But she hides from the reader that Alito, in a footnote parenthetical, is quoting a Centers for Disease Control report. What’s more, Alito does so in the course of presenting both sides’ “countervailing arguments about modern developments,” arguments that he concludes are “policy arguments” that do not bear on the constitutional question before the Court. I am baffled how anyone would find “chilling” Alito’s footnote quote of a CDC report in a section summarizing competing arguments that Alito concludes are legally irrelevant.
There is so much more of this ilk. Talbot says that “When delivering speeches, Alito doesn’t raise his voice, and he sometimes adopts a singsong intonation.” But she somehow perceives that he does so “as if explaining, with weary patience, what ought to be an unassailable truth,” and she even contends that “it’s hard not to see anger beneath it all.” She accuses Alito of a “snide pugnaciousness” and of being “so furious,” but she provides no meaningful evidence for her charges. She complains that Alito made a “gloating joke” (later recast as a “dad joke”) at the expense of poor Prince Harry and that he “isn’t one of the funnier Justices” at oral argument. She even flings serious-sounding but unfounded ethics charges—e.g., “unseemly impression of judicial indifference toward basic judicial ethics rules,” according to “[l]egal analysts at Slate” (yes, you guessed it: Dahlia Lithwick and Mark Joseph Stern).
In sum, if Talbot succeeds in showing that anyone is oddly angry and aggrieved, it’s herself, not Alito.