Justice Alito Discusses Retirement and Court Challenges Amid Political Rhetoric
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.
The justice in question, we are told, finds it “offensive” when presidents and high officers assail the court and particular judges in coarse language, and he believes such rhetoric has contributed to the public’s declining trust. That judgment, in its narrow compass, seems sound: railing from the throne, or from any great office, darkens understanding and inflames faction. Yet in my Essay on Human Understanding I argued that assent must be proportioned to the evidence; men are not bound to trust where they see no proof, and to demand their belief without giving reasons is a subtle form of force. If confidence in the court has ebbed, we must look beyond ill words to ill structures.
Consider first the flood of emergency appeals. To judge in haste, by extraordinary process, is a kind of prerogative: an exercise of power outside, or at the edge of, the standing rule. In extremity, such prerogative may be needful, for governments must sometimes act quicker than the laws foresee. But it is tolerable only while two conditions are kept. The people must see that such departures truly serve their safety, not the convenience of rulers; and they must remain revocable, fenced about by reasons and later review. A constant resort to emergency, unaccompanied by clear principles, accustoms a nation to arbitrary discretion. That path leads not away from the state of nature, but back toward it by another door.
Secondly, I mark with concern how the justice’s thoughts of retirement are reported chiefly with respect to which faction might command the Senate, and how this alters one president’s “chances” of placing a successor. I name no party; I accuse a design. Where seats on the highest bench are openly treated as the spoils of contending interests, the court ceases to appear an impartial judge between the people and their governors, and looks instead like an instrument by which one set of men entrenches its power over another. In such a case the burden of proof, which always lies on those who claim a right to rule, grows heavy indeed.
We are also told that, in one instance, the court has allowed a president to continue deporting persons to third countries while a policy is under review. I know nothing of the merits beyond that bare description, and so I suspend private judgment. Yet even in this scant light the rule abides: to touch men’s lives, liberties, and estates by summary order is to walk near the edge of the law of nature, which forbids that any ought to be harmed in his life, health, liberty, or possessions without sufficient cause. The court’s duty here is double: to measure the executive’s hand by that higher rule, and to give reasons in public, that all may see the difference between law and will.
The justice insists that harsh rhetoric does not sway how the court rules. I am content to take him at his word about his own mind; no man can see directly into another’s inward persuasion. Yet legitimacy in civil society does not rest on secret sincerity alone. It rests on what a free and equal people could reasonably consent to, seeing the forms and fruits of power. When a court moves increasingly by emergency orders, when its membership is discussed chiefly in terms of partisan advantage, and when trust decays across the spectrum, even the most upright judge must recognize that the appearance of being a judge in his own case is creeping over the institution.
In the Second Treatise I wrote that when those who hold power set up their own arbitrary will in place of settled, known law, they thereby make war upon the people and dissolve the government, though the buildings still stand. I do not say that this court has yet run such a long train of abuses. The facts before me are too scant for such a verdict, and prudence forbids light talk of dissolution. But I say plainly that a court which lives on trust cannot live long on emergency, on factional appointment, and on the hope that citizens will believe beyond the evidence of their own eyes. If that trust is squandered, the people will at last appeal to heaven for another settlement of their rights.
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — The dissolution of government and the right of resistance: when legislators invade property or set up arbitrary power, they rebel against the people, not the people against them.
- An Essay Concerning Human Understanding — Assent must be proportioned to the evidence; believing beyond one's proofs is a failure of duty, not a mark of faith.