Talking Points

Justice Alito's political case for SCOTUS transcendence of politics

Supreme Court Justice Samuel Alito stepped forward Thursday to defend the institution from its growing legion of detractors. In a speech at the University of Notre Dame, he pushed back on criticism of the court's "shadow docket" handling of high-profile cases, like its recent decision to let Texas' anti-abortion law take effect.

"The catchy and sinister term 'shadow docket' has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways," Alito said, taking particular aim at a recent Atlantic article he called "false and inflammatory." "That portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution."

Alito is just the latest conservative justice to speak of the court this way. His colleagues Clarence Thomas and Amy Coney Barrett gave high-profile speeches denouncing progressive calls for reforms like court-packing and ending judicial review by denying SCOTUS is politicized. "I think we should be careful destroying our institutions because they don't give us what we want when we want it," Thomas said.

There's an irony here. It's clear the conservative justices want to be seen as above politics. The court isn't "a bunch of partisan hacks," Barrett said. But to make their case, the justices have stepped away from the bench and into the public square, defending the status quo against impertinent, often partisan critics. That is an inherently political act.

In past eras, the court has benefited from a veil of mystery. We don't often see (and only relatively recently have been able to hear) the justices at work: There are no cameras in the courtroom; deliberations take place behind closed doors; and printed opinions are usually handed down with little or no comment, as if from on high. 

These political defenses let the veil slip. "If Alito is concerned about public perceptions of the Supreme Court," MSNBC's Steve Benen observes, "perhaps he should stop delivering speeches like these that adversely affect public perceptions of the Supreme Court." If justices want to be aloof from politics, they should stay aloof from politics.

Or perhaps that distance can't be reclaimed. In December, SCOTUS will hear a Mississippi case that could potentially overturn Roe v. Wade. The reaction will be very, very political — and the court's future likely will be shaped less by defensive speeches than by how it steers the law in cases like this.