Jurisprudence

How Samuel Alito Is Like Donald Trump

Close-up of Alito
Justice Samuel Alito in the Oval Office in 2019. Alex Wong/Getty Images

For all the seeming chaos of his administration, Donald Trump actually had a philosophy of governance, one grounded in assaulting the rule of law, ethics, and truth itself: Trumpery. In a new book, we warn that with Trump out of office, the greatest danger posed by Trumpery is that others will adopt it. Now that has apparently happened at the Supreme Court, as reflected in Justice Samuel Alito’s draft opinion overruling Roe v. Wade.

Perhaps the single most defining characteristic of Trumpery is its disdain for the rule of law. The Alito draft in the Dobbs case has that in spades. A central tenet of Supreme Court jurisprudence is stare decisis, the idea that once the Supreme Court has ruled on something, it is settled law and is entitled to permanence, even if later courts may disagree with it. That is particularly true where you have a decadeslong established precedent like Roe.

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By upending one of the core legal principles governing the Supreme Court’s functioning, the Alito draft undermines the rule of law—and the court’s legitimacy. It is akin to Trump’s incessant assault on the laws and norms of the presidency, which in time undermined and weakened the executive branch and Americans’ faith in it. Alito and the four justices who are reportedly ready to rule with him are sending the Supreme Court down that same slippery slope. And they are sending a dangerous message: If Roe can be tossed out, then any Supreme Court precedent is in jeopardy. There goes stare decisis.

Why this race into recklessness? It is driven by the second core tenet of Trumpery: elevation of selfish personal interests over public policy ones. Alito is himself reportedly opposed to abortion in his personal life, as are some of the other members of the majority. With this draft decision, they have apparently allowed their personal agendas to seep into their abandonment of stare decisis and their official policymaking.

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Sound familiar? Not just Trump but many in his administration used and abused government as a tool for their personal ends, as we explain in our book. Judges are supposed to adjudicate legal issues on the merits, independent of their personal ideologies. Alito and those reportedly joining the draft opinion have done the exact opposite here.

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Another core characteristic of Trumpery is dishonesty, with the former president reported to have lied more than 30,000 times. The Alito draft is rife with disinformation. For example, he justifies his reasoning on Roe with the fact that abortion is an “unenumerated right”—among the civil and human rights that are not explicitly mentioned in the Constitution. These rights, Alito contends, should only receive federal protections if they are “deeply rooted” in U.S. history and culture. Abortion is not, according to Alito.

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But the truth is the court has many times—including recently—instituted or upheld protections for unenumerated rights that don’t have the long history Alito is describing. That includes protecting interracial and same-sex marriage. To apply this reasoning to other unenumerated rights but not to abortion is contradictory and disingenuous, to say the least.

On the factual side, Alito cites fellow Justice Clarence Thomas in saying that abortion amounts to eugenics targeted at Black people. The truth is much more complicated, and ignores that outlawing abortion will disproportionately hurt women of color. To take only one other example of many, Alito also references Justice Amy Coney Barrett’s contention that “safe haven” laws—which protect parents who give up their child from penalization—obviate the need for abortions. But whether those laws lead to better outcomes for mothers is inconclusive, and experts disagree on their efficacy in general.

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A fourth trait of Trumpery is also evident in the draft opinion: shamelessness. Alito evidently feels no embarrassment at his naked attack on stare decisis, his pursuit of his personal agenda, or his dishonesty. Nor does he see the need for baby steps. The opinion is bold in declaring Roe dead. Like Trump’s openly professed desire to “overturn” the election, Alito’s overthrow of a half-century of precedent is unashamed and even brazen.

Fifth, Trumpery divides our society. Like the former president’s policies on immigration and building his wall, or his declaration that the white supremacist rioters in Charlottesville, Virginia, included “fine people,” the Alito opinion overturning Roe is a burning torch thrown into the tinderbox of our politics and society. Once the court proceeded with great caution to avoid popular turmoil. Not here. The result will foment widespread unrest.

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Like Melania Trump’s infamous slogan, Alito’s attitude is “I really don’t care, do you?” In his draft opinion he states, “We cannot allow our decisions to be affected by any extraneous influences, such as concern about the public’s reaction to our work.” In fact, avoiding the kind of political turmoil and escalation we are now facing is part of why we have stare decisis—judges should care about upsetting long-settled expectations and the societal ruptures that causes. Disregard for (and even intentionally exacerbating) social divisions was a specialty of the former president, who did everything possible to gratify his base. Tragically, this draft opinion smacks of a similar approach, consequences be damned.

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That will do great harm not just to the social fabric, but to our system of government itself. The assault on democracy is the sixth foundational aspect of Trumpery. This decision will devastate the legitimacy of the Supreme Court. It was already on shaky ground, with its current composition owed to two presidents, George W. Bush and Trump, who did not win the popular vote during their initial victorious campaigns to the White House. To make matters worse, the shape of the court was manipulated by the illegitimate GOP Senate blockade during President Barack Obama’s last year in office of his pick for the Supreme Court, Merrick Garland, purportedly because it was an election year. Then when a Supreme Court seat became vacant even later in the last months of Trump’s administration, a Republican majority in the Senate hypocritically rammed through Justice Amy Coney Barrett. This decision will devastate whatever remaining bipartisan legitimacy the court enjoyed before it as a key branch of our government.

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That brings us to the seventh and final of the seven deadly sins of Trumpery: disdain for ethics. Trump and his cronies famously had little use for ethics. But when it comes to the Alito opinion, here the apostle of Trumpery is whoever leaked it. Doing so was a serious violation of legal ethics and, if done by a justice, of judicial ones. (That is part of the reason that the Supreme Court needs its own code of ethics, as we’ve argued in our book.) That ethics transgression is however equaled by Alito’s own assault on stare decisis, pursuit of his personal agenda, and disregard for truth that the draft represents.

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The leaked Alito decision is terrible news for civil rights, for the Constitution, and for the legitimacy of the Supreme Court. Globally, judicial polarization of this kind often leads to wider democratic backsliding, according to social science. But that same literature teaches us that in a democracy, hope is never lost. If Roe is indeed overturned, we will need to take the battle to the states to secure this precious right in legislation, litigation, and practice, including by getting on-the-ground assistance to women in need. Every concerned American should support this essential effort. As it turns out, much that we hold dear depends on it.

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