Justice Alito Discusses Retirement and Court Challenges Amid Political Rhetoric

The takes

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  Adam Smith

  1723–1790, Scotland (the Scottish Enlightenment: Kirkcaldy, Glasgow, Edinburgh)

  When Presidents Abuse Their Judges

  The loud gain from attacking a court is political, but the quiet loss is the nation’s confidence that law, not faction, decides its fate.

  A judge of your highest court, long on the bench and now of advanced years, has lately complained that he is “not pleased” with the rhetoric of presidents and other great officers when they speak of that tribunal. He observes that the language used to describe the court and its decisions is far harsher than fifteen years ago; that one president may call him one of the greatest, while branding other judges he himself appointed as unpatriotic or hollow men; and that, whatever its effect upon decisions, this continual railing contributes to the public’s declining trust. In his annoyance there is vanity, no doubt; but there is also a public lesson, which is of more importance than his wounded dignity.

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  John Locke

  1632–1704, England (writing amid the Exclusion Crisis and the Glorious Revolution)

  A Court That Lives on Trust Cannot Live Long on Emergency

  When judges speak of rising emergency appeals, partisan appointments, and public mistrust in the same breath, they confess that their power stands in danger of slipping from government to usurpation.

  When I hear that a nation’s highest court “can’t stem” a rise of emergency appeals, while one of its justices publicly laments harsh presidential rhetoric and muses on retirement at a politically charged moment, I do not first ask who will gain or lose by the next appointment. I ask a simpler question: what sort of power is this, and on what trust does it stand? In the Second Treatise I defined political power as a right of making and enforcing laws only for the public good. Wherever power departs from that definition, it ceases to be properly political; it is bare force, which no man, born free and equal, is bound in conscience to obey.

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  Niccolò Machiavelli

  1469–1527, Florence (republican secretary and diplomat, then exile, amid the Italian Wars)

  A Court That Won’t Fight for Its Own Authority Will Lose It

  When a high judge calls the attacks on his court “offensive” yet insists they change nothing, he mistakes personal dignity for institutional defense—and fortune will not forgive that error.

  A justice of your highest court, Samuel Alito, now 76, tells the public that retirement is something a man his age must consider every term, and that he had already thought of stepping down and chose not to. At the same time, he complains of a surge in emergency appeals and of harsh presidential rhetoric that he calls “offensive,” whether it comes from Donald Trump, Joe Biden, or Barack Obama. One president praises him as “one of the Greatest of All Time,” then denounces other justices he appointed as “unpatriotic” and “merely a shell of their original selves.” The justice replies, in substance: our rulings are unmoved by this noise, though public trust decays. In that contrast lies the whole disease.

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