Justice Ruth Bader Ginsburg made news recently, when she said—bragged, it seemed—that she and her fellow liberals on the Court were going out of their way to stifle their individual voices in high-profile cases. When the liberals find themselves on the losing side of a case, she explained, they strive to sign a single dissenting opinion instead of each justice writing his or her own.
"If you want to make sure you're read, you do it together, and you do it short," she told NPR's Nina Totenberg, a longtime friend. When Totenberg asked Ginsburg why the Court's conservatives don't take a single approach, Ginsburg quipped, "next term I think you'll see some of my colleagues will be more disciplined."
Maybe the conservative justices would score more political points with such an approach. But our country would be all the worse off for it. For as things currently stand, the Court's conservative or libertarian justices are writing in such distinct voices—with such distinct principles, presumptions, and prudential judgments—that our nation's constitutional debates hardly suffer from hearing each of the conservative and libertarian justices speaking for themselves as much as possible. We all benefit from them.
And so we are especially lucky this week, as Justice Alito took the time to sit for a 90-minute discussion of his life and the law, the Court and the country. It is the latest "Conversation with Bill Kristol," and it is utterly fascinating.
Their conversation ranges from Alito's upbringing in New Jersey, to his education at Princeton and Yale Law School. Then, refusing to allow his Yale legal "education" to hold him back (I kid ... somewhat), he served in a variety of posts in the Reagan Justice Department, before his appointment to the U.S. Court of Appeals for the Third Circuit and, finally, to the Supreme Court.
But perhaps the most interesting and immediately relevant part of their talk pertains to Justice Alito's view of constitutional "liberty" and the federal courts' role in defining and enforcing it.
He foreshadows this theme early in their conversation, in describing his youthful interest in the writings of the late Alexander Bickel, author of such books as The Supreme Court and the Idea of Progress (1970):
KRISTOL: And I’ve read that you read some works of the great Yale Law professor, Alexander Bickel, before you went to Yale Law School. Is that – ? ALITO: I did, yeah. The book that, the first book of his that I read was called The Supreme Court and the Idea of Progress, which came out while I was in college. And as I said, I had been thinking about this issue of what would make a constitutional decision legitimate if it wasn’t based very clearly on the text of the Constitution, or something else that was fixed. The orthodoxy at that time was that aside from a few questions that were settled by the text, judges and Justices were really not finding the law in any sense, there was not an objective law for them out there to find. This was – the orthodoxy was still very much under the spell of the legal realists who said what judges are doing is really implementing their own policy preferences although they dress it up in fancy language. If you start with a premise like that, what would make a decision legitimate, and that was what Bickel had begun to address earlier. But so he began as really, as a defender of the Warren Court, which was a very un-theoretical court. They, I think, they reflected the personality of Chief Justice Warren, who was a practical kind of Republican progressive reformer, so he had a very clear idea of what good policy was and he used the power of the judiciary to implement that policy, but neither he, I think, nor most of the other Justices who were with him in the big Warren Court decisions – with the exception of Frankfurter, who became a dissenter – but for the most part, they did not seem to worry very much about the theoretical justifications for what they were doing. So Bickel began as a – to provide a theoretical justification for what they were doing, at least in the early years of the Warren Court, but by the time, The Supreme Court and the Idea of Progress came out in the late 1960s, Bickel had become more and more doubtful about what the Warren Court was doing, particularly in the later years.
In Bickel's time, as in ours, these considerations arise most emphatically in cases under the Fourteenth Amendment. It prohibits any State from "depriv[ing] any person of life, liberty, or property, without due process of law" -- a broadly worded mandate that long has served as the basis for judicial recognition (or creation) of constitutional rights.
Such as the right to same-sex marriage. That was the Court's holding last month in Obergefell v. Hodges, in an opinion written by Justice Kennedy for five justices. Justice Alito was among the dissenters, and he did not hesitate to write his own opinion, which closed in strikingly "Bickelian" terms.
"Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed," he wrote. "A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means." Simply put, the Court's unrestrained actions evidence "the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
In their "Conversation," Kristol asks Alito about these lines. And Alito replies:
[H]ow do we determine what liberty in the 14th Amendment means? Liberty means different things to different people. ... The Court’s conception, I said in this opinion and I believe to be true, is a very postmodern idea; it’s the freedom to define your understanding of the meaning of life. Your – it’s the right to self-expression. So if all of this is on the table now, where are the legal limits on it? ... There’s no limit. The Court had tried to limit this in some earlier cases from the Rehnquist era, prominently a case called Glucksberg that involved the claim that there was a constitutional right to die, by saying that liberty protects those rights that are deeply rooted in the traditions of the country. So you had to find a strong historical pedigree for this right. ... But the Obergefell decision threw that out, did not claim that there was a strong tradition of protecting the right to same-sex marriage, this would have been impossible to find. So we are at, we are at sea, I think. I don’t know what the limits of substantive liberty protection under the 14th Amendment are at this point. ... If it’s not in the text of the Constitution or it’s not in something that is objectively, objectively ascertainable, if it’s just whatever I as an appointee of the Supreme Court happens to think is very important, so I don’t know where – it raises questions of legitimacy, it raises practical questions because the more the Court does this sort of thing, the more the process of nomination and confirmation will become like an election. It will become like a political process.
These questions have challenged us since the very ratification of the Fourteenth Amendment, nearly 150 years ago. The Court's decision in Obergefell raises them anew. The five-justice majority answered one very important question in that case. But they raised a host of others. Justice Alito is clearly grappling with their ramifications. Lucky for us.
Adam J. White is an adjunct fellow at the Manhattan Institute and a lawyer in Washington, D.C.