By James Taranto and David B. Rivkin, Jr.

April 28, 2023 in the Wall Street Journal

Justice Samuel Alito was supposed to speak to law students at George Mason University in Arlington, Va., but when they showed up, he wasn’t there. “That Alito was speaking via closed circuit from a room at the Supreme Court seven miles away, rather than in person, was a sign these are not normal times,” the Washington Post reported. The Post didn’t explain what made the “times” abnormal.

It wasn’t a lingering fear of Covid-19. In a mid-April interview in his chambers, Justice Alito fills us in on the May 12, 2022, event: “Our police conferred with the George Mason Police and the Arlington Police and they said, ‘It’s not a good idea. He shouldn’t come here. . . . The security problems will be severe.’ So I ended up giving the speech by Zoom,” he says. “Still, there were so many protesters and they were so loud that you could hear them.”

By now a noisy mob of law students may sound like any other school day, but last May also was a tumultuous time for the court. The preceding week, someone had leaked a draft of Justice Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, a landmark abortion case that wouldn’t be decided until late June. The last question at the George Mason event, the Post reported, was about how the justices were getting along in the wake of that unprecedented breach of confidentiality. At the time, Justice Alito said little in response beyond “we’re doing our work.”

He now says that the leak “created an atmosphere of suspicion and distrust. We worked through it, and last year we got our work done. This year, I think, we’re trying to get back to normal operations as much as we can. . . . But it was damaging.” Chief Justice John Roberts directed the marshal of the Supreme Court to investigate the leak. In January she issued her findings: “Investigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion.”

Justice Alito says the marshal “did a good job with the resources that were available to her” and agrees that the evidence was insufficient for a public accusation. “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody,” he says. He’s certain about the motive: “It was a part of an effort to prevent the Dobbs draft . . . from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside—as part of the campaign to try to intimidate the court.”

That campaign included unlawful assemblies outside justices’ homes, and that wasn’t the worst of it. “Those of us who were thought to be in the majority, thought to have approved my draft opinion, were really targets of assassination,” Justice Alito says. “It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us.” On June 8, an armed man was arrested outside the home of Justice Brett Kavanaugh; the suspect was later charged with attempted assassination and has pleaded not guilty.

A few pundits on the left speculated that the leaker might have been a conservative attempting to lock in the five-justice majority and overturn the constitutional right to abortion. “That’s infuriating to me,” Justice Alito says of the theory. “Look, this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”

He adds that “I don’t feel physically unsafe, because we now have a lot of protection.” He is “driven around in basically a tank, and I’m not really supposed to go anyplace by myself without the tank and my members of the police force.” Deputy U.S. marshals guard the justices’ homes 24/7. (The U.S. Marshals Service, a bureau of the Justice Department, is distinct from the marshal of the court, who reports to the justices and oversees the Supreme Court Police.)

A federal law called Section 1507 makes it a crime to picket or parade “in or near” a federal judge’s residence “with the intent of influencing” him “in the discharge of his duty.” During a hearing last month, Attorney General Merrick Garland told Sen. Mike Lee (R., Utah) that the marshals have “full authority to arrest” violators of Section 1507. But according to training slides obtained by Sen. Katie Britt (R., Ala.), deputies on the justices’ residential details are told to enforce the law only as “a last resort to prevent physical harm to the Justices and/or their families.”

Although the Supreme Court has held that the Constitution allows for reasonable restrictions on the time, place and manner of speech, the training slides indicate that the Justice Department believes it is unconstitutional to enforce Section 1507 absent “criminal threats and intimidation.” Regular protests outside the justices’ homes continue.

In some ways this is an old story. Each side of the abortion debate has featured a vigorous protest culture since at least the 1970s, when the court decided Roe v. Wade. The last time it reconsidered Roe, the three-justice plurality opinion in Planned Parenthood v. Casey (1992) asserted that it would “subvert the Court’s legitimacy” to overturn a precedent while “under fire,” meaning subjected to public criticism. The losing side has even resorted to violence before: Antiabortion extremists assassinated four abortion doctors between 1993 and 2009.

But as the court has grown more conservative in recent years, the left has stepped up the attacks on the court’s “legitimacy,” including character assassination of individual justices, with little objection from mainstream Democrats and plenty of help from the media.

Justice Alito says “this type of concerted attack on the court and on individual justices” is “new during my lifetime. . . . We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense.” Instead, “if anything, they’ve participated to some degree in these attacks.”

Judges are in a double bind: If they don’t respond, the attacks stand. If they do, they diminish the mystique on which judicial authority depends. Justice Alito demurs when we ask about “ethics” accusations against Justice Clarence Thomas from partisan media: “I’ll stay away from that.” But he does address a less-recent drama: “After Justice Kavanaugh was accused of being a rapist during his Senate confirmation hearings, he made an impassioned speech, made an impassioned scene, and he was criticized because it was supposedly not judicious, not the proper behavior for a judge to speak in those terms. I don’t know—if somebody calls you a rapist?”

Those who throw the mud then disparage the justices for being dirty. “We’re being bombarded with this,” Justice Alito says, “and then those who are attacking us say, ‘Look how unpopular they are. Look how low their approval rating has sunk.’ Well, yeah, what do you expect when you’re—day in and day out, ‘They’re illegitimate. They’re engaging in all sorts of unethical conduct. They’re doing this, they’re doing that’?”

It “undermines confidence in the government,” Justice Alito says. “It’s one thing to say the court is wrong; it’s another thing to say it’s an illegitimate institution. You could say the same thing about Congress and the president. . . . When you say that they’re illegitimate, any of the three branches of government, you’re really striking at something that’s essential to self-government.”

Some of the attacks are more technical, such as those involving the “shadow docket.” That term, coined by a law professor less than a decade ago, refers to applications for emergency orders and summary decisions, which the justices handle quickly and without full briefing. Such matters often provoke disagreement within the court, such as a 2022 Alabama congressional redistricting case in which Justice Elena Kagan, joined by two colleagues, complained of “the scanty review this Court gives matters on its shadow docket.”

Justice Alito finds these applications a nuisance. “They’re very disruptive. But what are we supposed to do? They are brought to us. The last administration brought a lot of them to us because a lot of its programs were enjoined. This administration is doing the same thing right now. The solicitor general has said that she’s likely to file an application here to stay the Fifth Circuit’s order in the case involving the—mifestiprone? However you pronounce the word.” It’s mifepristone, an abortion drug that a lower court had said the Food and Drug Administration erred in approving.

It’s April 13 when Justice Alito tells us: “I have to prepare for a sitting next week. The next two weeks we have arguments. I have to prepare for all of those cases. But when this comes in, I’m going to have to put all that aside and deal with it.” On April 14 the application reached Justice Alito in his capacity as circuit justice for the Fifth Circuit. He issued a temporary stay immediately and extended it on April 19. On April 21 the full court granted the stay, so that mifepristone will remain on the market pending further litigation.

Justice Alito filed a written dissent from the order granting the stay. He cited past complaints about the shadow docket from Justices Kagan, Sonia Sotomayor and Amy Coney Barrett. “I did not agree with these criticisms at the time,” he wrote, “but if they were warranted in the cases in which they were made, they are emphatically true here.”

The court’s attackers clearly seek to poison the well, but to what end? They sometimes proclaim unrealistic goals such as pressuring a disfavored justice to retire or removing him from office through impeachment. Sometimes they speak of packing or “expanding” the court—enacting legislation to create new seats that would immediately be filled by a Democratic president and Senate.

That might become possible if the Democrats have a good election in 2024, although Franklin D. Roosevelt failed in 1937 with enormous majorities, and Joe Biden, with narrow ones in 2021, punted the idea to a committee. It also would open the door to retaliatory packing by a future Republican president and Congress. Justice Alito finds the whole notion appalling: “To change the size of the court just because you want to change the result in cases—that would destroy it. You want to talk about our legitimacy? That would destroy the perception that we’re anything other than a political body.”

The threat to politicize the court can tempt justices to rule defensively—to take account of political ramifications and thereby politicize their own institution. The plurality explicitly did that in Casey, and some sitting justices have been accused of it in recent years. Justice Alito isn’t one of them.

“This is not a situation in which the right thing to do is different from the expedient thing to do, at least in the long term,” he says. The public “will have reason to question our legitimacy if they see that what we are doing is not following the Constitution and the laws, but we’ve got our finger to the wind”—he lofts a digit—“and we’re issuing decisions that nobody really believes represent our sincere thinking about the law, but are structured in a way to curry favor, avoid controversy or something like that.”

Justice Antonin Scalia said something similar in his dissent in Casey: “The notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening.”

The careers of Justices Scalia and Alito, whose high-court service overlapped by slightly more than a decade, demonstrate the increasing aggressiveness of the left’s approach to the court. Scalia was confirmed 98-0 in 1986; Justice Alito’s 2006 vote was 58-42, with only four Democratic ayes. The former, the first Italian-American justice, was celebrated as an ethnic pioneer; the latter’s opponents belittled him with the bigoted portmanteau “Scalito,” which appears on a framed bumper sticker on his bookshelf, a confirmation keepsake.

How did Scalia escape the opprobrium to which his younger colleagues and successors have been subjected? In part by dissenting often. “Nobody can say for sure,” Justice Alito says, “but I’m willing to bet he would have been on the side that has been so heavily criticized in all the controversial cases. His vote would have been there, and he would have been subjected to the same kind of criticism.”

There’s little doubt that would have been true of Dobbs. “Some decisions,” Justice Alito says, “and I think that Roe and Casey fell in this category, are so egregiously wrong, so clearly wrong, that that’s a very strong factor in support of overruling them.” Scalia was even blunter in Casey: “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

“When you’re in dissent,” Justice Alito observes, “well, his ideas were amusing and interesting. He spoke at a lot of law schools and he was honored at law schools, but he wasn’t a threat, because those views were not prevailing on issues that really hit home.”

Soon after Scalia’s death in 2016, one of those law schools even took his name—Antonin Scalia Law School at George Mason University. That’s where Justice Alito was unable to set foot six years later because “the security problems will be severe.”

Mr. Taranto is the Journal’s editorial features editor. Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/justice-samuel-alito-this-made-us-targets-of-assassination-dobbs-leak-abortion-court-74624ef9

Ideological lines turn out to be more fluid than partisans had imagined when Barrett was named.

By David B. Rivkin Jr. and Andrew M. Grossman

July 1, 2021, in the Wall Street Journal

‘Every time a new justice comes to the Supreme Court,” Justice Byron White used to say, “it’s a different court.” Activists expected that to be especially true when Justice Amy Coney Barrett arrived last year. The leftist pressure group Demand Justice denounced the nominee to succeed Justice Ruth Bader Ginsburg as “a far-right, activist judge whose confirmation would threaten to upend the lives of millions of Americans” and predicted her vote would doom ObamaCare.

Reality is seldom so simplistic. ObamaCare survived California v. Texas with a 7-2 majority, including Justice Barrett. Of the 65 cases the court reviewed this term, it decided only nine by 6-3 votes along conventional ideological lines, and only three of those could fairly be described as involving hot-button political controversies. One was Cedar Point Nursery v. Hassid, which held that a California labor regulation requiring agricultural employers to allow labor organizers on their property constituted “a per se physical taking” for which the employers were entitled to just compensation. The others were decided on Thursday as the term ended: Brnovich v. Democratic National Committee on election regulation and Americans for Prosperity Foundation v. Bonta on forced disclosure of nonprofit donors.

Yet it’s true the court has entered a new phase—one characterized by modest conservative victories, unpredictable alignments of justices, and surprising unanimous judgments. The driving forces are doctrinal differences among the court’s six conservatives, Chief Justice John Roberts’s preference for incremental rather than sweeping change, and the embrace across ideological lines of the principle that judges should follow the language of the law. As Justice Elena Kagan said in 2015, “We’re all textualists now.”

The same day the court ruled in favor of ObamaCare, it unanimously held that Philadelphia had violated the First Amendment by decreeing that a Catholic foster-care agency couldn’t operate in the city unless it certified gay couples. The deeper issue was the fate of Employment Division v. Smith (1990), a landmark decision holding that generally applicable laws burdening religious practice don’t violate free exercise, no matter that the burden may be great and the government’s interest slight.

In Fulton v. Philadelphia, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voted to overturn Smith. Chief Justice Roberts’s opinion for the other six justices didn’t go that far, but it remade the doctrine by holding that religious conduct must be treated no worse than equivalent secular conduct. That means a law isn’t “generally applicable” under Smith if it permits secular exceptions.

Fulton is a victory mainly for the chief justice’s incrementalism, which has its virtues—among them that it makes the court’s rulings easier for the losing side to accept. It’s no small matter that the court was able to rule unanimously for religious freedom in a case widely expected to be contentious. At the same time, Fulton makes Smith easier to overturn by weakening its rationale and reliance on its sweeping rule. In a concurrence, Justices Barrett and Brett Kavanaugh suggested they are open to doing so.

Fulton wasn’t the only surprising show of unanimity. In Caniglia v. Strom, all nine justices rejected a “community caretaking” exception to the Fourth Amendment’s warrant requirements for home searches—a case that might have splintered on concerns about gun violence or the needs of law enforcement. Twice the court unanimously overruled immigration decisions from the Ninth U.S. Circuit Court of Appeals favoring aliens; one of those decisions was written by Justice Sonia Sotomayor.

Other unanimous decisions rejected expansion of recent sentencing reductions for crack offenders, authorized money damages against state officials who violate the Religious Freedom Restoration Act, limited human-rights suits premised on foreign conduct, recognized First Amendment protection for a public-school student’s out-of-school speech, and declined to tighten jurisdictional limits on suits against major corporations. (So much for claims that the Roberts Court is in thrall to big business.)

Behind much of this agreement is the court’s convergence on textualism, the method of interpretation Justice Antonin Scalia advocated as a corrective to judicial policy making. The two unanimous immigration cases, as well as the crack-sentencing one, elevated clear statutory text over policy arguments. Likely the court’s outnumbered liberals have come to realize that only textualist reasoning can achieve a majority on today’s court.

There’s an asymmetry to this. Liberal justices’ methodological flexibility enables them to vote strategically with whichever conservative colleagues favor the most congenial result. Conservatives justices tend to be exacting on questions of text and doctrine, which can split their votes even when they agree on central issues or approach. Yet political conservatives can take heart from the court’s actions this term—and look optimistically toward the next. The justices agreed to hear cases in the 2021-22 term that give them opportunities to scale back precedents on abortion and expand them on gun rights.

The clearest area of positive reform this term concerns Congress’s attempts to shield executive-branch agencies from presidential control and democratic accountability. In U.S. v. Arthrex, the court found a constitutional violation in a scheme authorizing patent judges to render decisions free from review by the head of the Patent and Trademark Office, an officer subject to presidential oversight. In Collins v. Yellen, it held unconstitutional a restriction on presidential removal of the head of the Federal Housing Finance Agency.

The court invalidated only the offensive restrictions. But that limited remedy overcomes the principal objection—“widespread disruption”—to restoring presidential control by overruling the entire line of cases that authorize the headless “fourth branch” of government. That has been a central goal of the conservative legal movement since the 1970s.

To be sure, incrementalism can go too far. Some of the chief justice’s opinions, including Arthrex, are so carefully hedged that the rules they announce are little more than that one party prevailed and the other lost. A similar complaint can be leveled at Justice Stephen Breyer’s 8-1 opinion in the student-speech case Mahanoy Area School District v. B.L., which provides little guidance for lower courts or school administrators. Justice Alito offered more in a concurrence, but only Justice Gorsuch joined it. Likewise, Justice Breyer’s opinion in the ObamaCare case declined to rule on the merits, holding instead the challenges lacked standing yet without addressing their central argument to the contrary.

All these opinions were assigned by the chief justice and joined in full by his most junior colleagues, Justices Kavanaugh and Barrett. They are rightly concerned about overreaching and appear resolved in each case to decide no more than need be decided. Judicial restraint is essential and admirable, but clarity about the law is necessary for the rule of law to function. As the new justices gain confidence, the court should strike a truer balance.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/a-cautiously-conservative-supreme-court-11625164373

By David B. Rivkin and Lee A. Casey

Sept. 29, 2019, in the Wall Street Journal

The effort to sink Justice Brett Kavanaugh’s confirmation cries out for investigation. The Senate Judiciary Committee has already made a criminal referral to the Justice Department regarding alleged material misstatements by lawyer Michael Avenatti and his client Julie Swetnick. And a new book by two New York Times reporters contains a potentially explosive revelation.

In “The Education of Brett Kavanaugh,” Robin Pogrebin and Kate Kelly report that Leland Keyser —who was unable to corroborate high-school friend Christine Blasey Ford’s allegation of youthful sexual misconduct—says she felt pressured by a group of common acquaintances to vouch for it anyway. The book quotes an unnamed male member of the group suggesting in a text message: “Perhaps it makes sense to let everyone in the public know what her condition is”—a remark the reporters describe as reading “like a veiled reference” to Ms. Keyser’s “addictive tendencies.” (The authors quote her as saying she told investigators “my whole history of using.”)

A concerted effort to mislead the Federal Bureau of Investigation and the Senate, especially if it involved threats to potential witnesses, could violate several federal criminal statutes, including 18 U.S.C. 1001 (lying to federal officials), 18 U.S.C. 1505 (obstruction of official proceedings) and 18 U.S.C. 1622 (subornation of perjury). Investigating and, if the evidence is sufficient, prosecuting such offenses would deter similar misconduct in the future.

It’s bad for the country when nominees are subjected to what Bill Clinton calls “the politics of personal destruction.” It intensifies political polarization and bitterness, traduces due process, dissuades good people from government service, and injures the reputation of the judiciary and other institutions.

The Senate and FBI could also consider changing the background-check process for nominees. Justice Kavanaugh’s opponents seem to have expected a full-fledged criminal-style inquiry into Ms. Ford’s allegations, although Senate Democrats had sat on them for months. But that’s not how background investigations work. They’re carried out by a special unit whose job is to verify information the nominee has provided and gather additional information that may reflect on his character and reputation. This process does not involve the same sort of searching questions that are characteristic of a criminal investigation. Nor do FBI background investigators routinely assess individual witness credibility. They reach no conclusions but collect information and then forward it to the White House and Senate. It is then up to the elected officials to decide who and what to believe. It is a political, not a criminal, process.

This is a matter of practice and tradition, not law. The FBI could be asked to conduct background investigations in a manner more comparable to its criminal and intelligence work, where agents will assess witness credibility and use those assessments to guide the focus and course of the inquiry. It should be especially vigilant to the possibilities of collusion and witness tampering, which are uniquely troubling in high profile confirmation battles.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/probe-the-effort-to-sink-kavanaugh-11569786380

By David B. Rivkin Jr. and Lee A. Casey

October 16, 2018, in the Wall Street Journal

Brett Kavanaugh’s appointment to the Supreme Court has sparked a firestorm of outrage and recrimination on the left. Some attacks seem aimed at intimidating the justices into supporting progressive causes. “The Court must now prove—through its work—that it is worthy of the nation’s trust,” Eric Holder, President Obama’s attorney general, tweeted Oct. 6.

Yet the attacks go beyond ideology. Detractors of Justice Kavanaugh and President Trump are denouncing the Constitution itself and the core elements of America’s governmental structure:

By David B. Rivkin Jr.

Sept. 9, 2018, in The Hill

Democrats like to pillory President Trump for destroying American institutions and breaking the norms of conduct. Yet, during the Supreme Court confirmation hearing for Judge Brett Kavanaugh, Democrats blatantly and flippantly violated Senate norms, rules and traditions — and inflicted in the process considerable damage on the institution.

Sen. Kamala Harris (D-Calif.) interrupted the very first sentence of Senate Judiciary Committee Chairman Chuck Grassley’s (R-Iowa) opening statement. Protesters constantly interrupted questions asked by senators of both parties, as well as Kavanaugh’s answers; they were challenged only by Republican senators. But even in this chaotic atmosphere, Sen. Cory Booker’s (D-N.J.) decision to violate the committee’s confidentiality agreement with the executive branch, pursuant to which the committee received documents that otherwise would have been withheld, was particularly egregious.

On Wednesday night, Booker asked Kavanaugh about an email exchange dating to the aftermath of the 9/11 terror attacks. He quoted a committee confidential document — that is, a document that no senator had the authority to make public, and which Kavanaugh did not have in front of him.

Early Thursday, to ensure that  Kavanaugh and the American public would be able to see the emails for themselves, Grassley worked with the Department of Justice and former President George W. Bush’s attorney to release several committee confidential documents, including the one Booker had quoted. They were taken off the “committee confidential” roster at 4 a.m.

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