Mark Joseph Stern: Case study in judicial rudeness

June 28, 2013 

After authoring a slew of 5-4 conservative opinions this week and helping to effectively kill the Voting Rights Act, Justice Samuel Alito should be in a good mood. He's not. On Monday, a cranky Alito rolled his eyes, shook his head, and looked at the ceiling -- a jarring breach of court decorum -- as Justice Ruth Bader Ginsburg read a dissent from the bench. In weeks prior, the justice openly glowered and rolled his eyes at Justice Elena Kagan on two separate occasions. It's a grand court tradition for justices to get grumpy and dyspeptic during the final, toughest days of the term. But even cantankerous Justice Antonin Scalia has learned to take out his anger on cases, not people (or at least, not people present).

That's a skill Alito has yet to learn -- and if the past few weeks are any indication, he certainly isn't trying. That should come as no surprise. Everyone snaps from time to time, but Alito has long stood out as the rudest, most impudent justice, broadcasting his hostility and impatience to advocates and colleagues alike. He treats lawyers like children caught in a lie, grilling them on every minor point of their argument while dismissing their logic as idiotic. He handles fellow justices like hecklers who have thoughtlessly interrupted his train of thought. His demeanor is one of gruff agitation; he constantly sounds like he would rather be somewhere else.

Most of the world first witnessed the justice's churlish tendencies during the 2010 State of the Union address, when the justice shook his head and mouthed "not true" in response to President Obama's Citizens United criticism. (Alito is known to dislike Obama, who as a senator voted against his confirmation. When Obama stopped by the court a week before his inauguration, Alito was conspicuously absent.) But his bad manners were on display in the courtroom long before that. At times, Alito can look bored or frustrated, occasionally following the lead of his colleague Justice Clarence Thomas and resting his eyes for a long moment. More frequently, however, Alito will hack away at an advocate's line of reasoning with smug certitude, sighing and scowling as if to indicate that the lawyer's response is simply not worth his time.

The best way to experience Alito's strange, irascible weariness is to see it in person at the Supreme Court. But the Oyez Project's invaluable recordings of oral arguments offer insight into his vexed style. His tone during oral arguments for Hollingsworth v. Perry, for instance, provides much more insight into his mindset than mere text. During arguments in the case, which questioned the constitutionality of California's Proposition 8, Alito infamously asked why the court should "render a decision based on an assessment of the effects of this institution which is newer than cellphones or the Internet."

The depth of Alito's subtle malice, his irked impatience, can only be heard in his delivery. Take a listen at Oyez, starting around the 63:30 mark, to hear how Alito's halting cadence conveys his exasperation that gay people had the gall to actually assert their rights in court. "You want us to step in?" he demands. "We do not have the ability to see the future!" His voice, thin and crackly, churns with indignation. His question is not really a question; it's a cri de coeur taken straight from the anti-gay marriage movement, which routinely agonizes over the newness and "revisionism" of same-sex marriage.

In recent years, Alito's temperamental flare-ups have become increasingly directed at his colleagues. Court procedure dictates that the justices argue with one another through the proxy of an advocate. But Alito is entirely willing to direct his barbs directly at his colleagues. Even Scalia, Alito's usual ideological ally, isn't safe from his prickly jibes. During oral arguments for Brown v. EMA, a case involving the sale of violent video games to minors, Alito mocked Scalia's originalism by informing an advocate, "I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?" Alito was obviously amused by his own belittling quip, as was the audience: The exchange, which begins around 16 minutes in, drew laughter from the crowd. Scalia, though, was clearly unamused. "No," he growled, "I want to know what James Madison thought about violence." A frequent court jester himself, Scalia still takes his own philosophy quite seriously. He doesn't take kindly to a colleague ridiculing it -- especially in public.

Supreme Court justices need not be completely apolitical. Their rulings are fundamentally intertwined with politics, so they might as well be transparent about where their partisan sympathies lie. But for a justice to take potshots at a vice president-elect while openly raising money for a far-right think tank is to abandon any gesture toward judicial impartiality. It is simply not behavior befitting a Supreme Court justice -- but then neither is much of what Alito says and does. On the bench, he tramples advocates' arguments with a dismissive sneer and openly cuts down his colleagues' logic. Off the bench, he unapologetically trumpets his fidelity to the Republican cause. Alito's lifetime tenure ensures that his antics will never have serious professional repercussions. But as long as his impudence continues, his presence on the court will continue to demean what was once, not too long ago, a respectable institution.

Mark Joseph Stern, a freelance writer based in Washington, wrote this for Slate;

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