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Editorial Advisory Board: Alito’s comments undermine the court

Speaking at Notre Dame Law School’s Religious Liberty initiative in Rome, Justice Samuel Alito, the author of Dobbs v. Jackson, used the event to attack foreign leaders who criticized his decision. He did so by mocking them and cracking jokes.

Specifically, he said he had the honor of writing a decision that had been lambasted by “a whole string of foreign leaders who felt perfectly fine commenting on American law…”  He then cracked, “one of these was former Prime Minister Boris Johnson, but he paid the price,” referencing Johnson’s resignation.

On a roll, Alito then said, “But what really wounded me, was when the Duke of Sussex addressed the United Nations and seemed to compare the decision, whose name may not be mentioned, with the Russian attack on Ukraine.”  For good reason, an uncomfortable silence followed.

Dobbs v. Jackson was a solemn and very divisive decision, and Alito has mistaken his role.  He is not the court’s jester nor is he a stand-up comedian like Ms. Maisel of cable TV fiction.

Sure, from time to time, humor or sarcasm has been adopted by some of the justices. During oral argument, for example, Chief Justice John Roberts joked when questioning counsel about his client’s insanity defense, then on appeal.  But Roberts’ quip was intended to question the lawyer regarding whether being a tightwad and borrowing tools, instead of buying them, supported a claim of insanity.

Alito’s remarks are so different from Roberts’ and come entirely at the wrong time and over the wrong subject. Today, the court is a political body whose majority is comprised of a political minority. Abortion is an uber-sensitive issue to so many, and Alito’s public jokes about this case, at a religious conference no less, demean him and the court he represents.

His flippant comments further damage a court already damaged in the eyes of many by what appear to be decisions motivated by politics or religion. And more to the point, there are numerous abortion decisions pending, and no doubt yet to be brought, in the federal courts. Some think the Supreme Court is in a legitimacy crisis. Alito’s sometimes sarcastic remarks at this Rome event certainly did not help, and in the eyes of many hurt the court.

The justices are permitted to engage in public speaking, but when they do, they should measure their topics, words and demeanor against the need for the court to project a professional image. His comments were damaging to the court.  While Alito may have mocked world leaders, he made a mockery of the court.

Editorial Advisory Board members Arthur F. Ferguson, Leigh Goodmark and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Michael Hayes

Julie C. Janofsky

Ericka N. King

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.


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