Samuel Alito and the Ethics of Suspicion

Justice Samuel Alito, of the United States Supreme Court, professes to be an “originalist” about the interpretation of the law. The originalist approach, roughly speaking, says that judges should adhere to the intent behind and/or meaning of the words of the U.S. Constitution as originally written, without trying to interpret it to accord with their own moral and political convictions or engage in “judicial activism.” Alito is also often said to hold the distinct but compatible view of “textualism,” which holds that legal statutes more broadly should be interpreted according to their plain meaning and, again, not in light of one’s moral and political views.

Yet here is a striking fact. Alito’s interpretations of the “plain meaning” of the Constitution and other laws do reliably line up with his own moral and political convictions. These moral and political convictions, it is no secret, are highly conservative. Not only is Alito a Republican appointee in a very partisan judicial system; he has also twice been caught flying flags outside his home that are associated with far-right political causes and the “Stop the Steal” conspiracy theory that followed the 2020 Presidential election. And Alito’s interpretations of the law, time after time, align with conservative causes and with the interests of candidates of the Republican party. He has found that the constitutional right to freedom of religion extends to denying other people access to contraception and the right to marry a same-sex partner. Before his appointment to the Supreme Court, he ruled that the Fourth Amendment did not, contrary to all appearances, forbid strip-searching a child without a warrant naming them. More recently, he (unsuccessfully) tried to get a case challenging 2020 Presidential election results to be heard before the court. And perhaps most notoriously, he joined other Republican-appointed justices in handing down the decision that as a (then-)former President, Donald Trump enjoys absolute immunity from prosecution for any “official act.”

These are not outliers. Out of all the Supreme Court’s cases during his tenure, Alito has joined with the liberal justices as the sole conservative just once, and that was on a case where the liberal justices were on the side of giving unchecked power to the executive branch of government. Every other conservative justice has joined with the liberals more often.

You don’t have to be a hardened cynic to be getting a little suspicious here. In any one of these cases taken individually, it could be that a neutral and fair interpretation of the constitutional or statutory text happens to favor the side aligned with conservative political causes or Republican electoral interests. But it seems like a bit of a coincidence—to put it mildly—for them to do so on every occasion.

The implausibility of this coincidence, I think, gives us excellent reasons to think that, contrary to his professed legal philosophy, Alito’s interpretations of the law are being influenced by his moral and political convictions. On this hypothesis, insofar as Alito is reaching beliefs about the plain meaning of the legal texts, these beliefs are being (perhaps subconsciously) biased by a (perhaps subconscious) desire to arrive at rulings that line up with these convictions and that advance the interests of those who would further them. (This is an instance of a general process that psychologists call “motivated reasoning,” whereby someone’s desire to reach a particular conclusion leads them to gather and process evidence, and evaluate arguments, in a biased way.) And this in turn gives us reason to think that, at least as interpretations of the plain meaning of the text, his rulings are unreliable.

To be clear, similar points may well apply to many of Alito’s Supreme Court colleagues—including some of the court’s liberals. That we find this to some degree on both “wings” of the court is an almost inevitable consequence of a system where judicial appointments are so politicized. But Alito’s record of ruling in line with his own moral and political convictions is particularly extreme, and is particularly striking in light of his claim to be an originalist who disavows any role for a judge’s own moral and political convictions. (By contrast, some liberal justices, historically, have more openly embraced a conception of legal interpretation whereby a judge’s own moral and political convictions have a role to play.)

The hypothesis about what explains Alito’s interpretations of the law that I’ve offered, in terms of motivated reasoning, is a purely causal, psychological one. It explains why Alito arrives at his beliefs about what the law says without in any way rationalizing these beliefs. Additionally, Alito himself would almost certainly say—and probably even sincerely think—that the motivated reasoning explanation of his beliefs is not in fact the correct one. He would say that he really is arriving at his judgments by an unbiased evaluation of what the Constitution and statutes say. We can (roughly) follow the philosopher Amy Flowerree in calling an explanation of this kind—one that explains without rationalizing, and that the believer themselves would disavow—a “psychologizing” explanation, and the activity of giving such explanations “psychologizing”.

Flowerree and some other philosophers have recently suggested that engaging in psychologizing—as I have just done with Alito—is ethically problematic. They offer two reasons why this might be so. The first, stressed by Flowerree, is that the explanation I’ve given is disrespectful and insulting to Alito. The idea is that in taking him to be deceived about his ultimate reasons for believing what he believes, and (relatedly) refusing to believe him when he claims that his own moral and political convictions are playing no role, I am treating him as something less than a rational agent. The second, stressed more by the philosopher Nick Smyth, is that psychologizing is corrosive to public discourse. Here the thought is that accusations of bias and motivated reasoning can be traded in both directions, and make no progress in helping us to resolve our differences.

Consequently, both Flowerree and Smyth think that we should have at least a default presumption against giving psychologizing. According to them—and following a longer philosophical tradition that sometimes shows up in current discussions of “civil discourse”—we should generally engage with people’s beliefs on the merits of their stated arguments for them, rather than trying to discredit these beliefs by speculating about their psychological origins. If Alito is so biased, they might say, then there will be flaws in his arguments for his legal judgments, and we should focus on identifying those.

But therein lies my problem. I am by no means an expert on constitutional or statutory interpretation. For all his flaws, Alito is not a stupid person, and he knows far more about these matters—about the principles of such interpretation, about the context in which the Constitution was written, and of course about relevant case history and precedent—than I do. As such, I don’t think I can confidently identify the flaws in his interpretive arguments. Of course, for each of his controversial rulings, I could cherry-pick a legal scholar—or, indeed, a liberal Supreme Court justice—who says he’s wrong, and accept their reasoning for why this is so. But in doing this I’d just be engaged in the same sort of motivated reasoning I’m complaining about. As a layperson, I can’t really tell whose legal arguments are superior, and I would only be accepting those of Alito’s opponent because they line up with my desired conclusions.

For all that, though, it still seems to me that I have very good reasons to be suspicious of Alito’s interpretations of what the law says, given how conveniently they line up with his moral and political convictions. (Indeed, the points about how smart and knowledgeable Alito is don’t allay that concern. On the contrary, there is some evidence that the more smart and knowledgeable someone is, the more prone to motivated reasoning they are, because they are better at cooking up apparently-good justifications for their desired conclusions.) But were I to forbid myself from engaging in psychologizing, I wouldn’t be able to access these good reasons to be suspicious. Since I am also not enough of an expert to identify the flaws (if any) in Alito’s legal arguments, I would be left without any basis for critique of Alito’s stance at all—neither that it is flawed on the merits, nor that is it a post hoc rationalization for his political agenda.

Writ large, such an approach would be a very dangerous thing at this political moment. As I write, there is a real threat that the Supreme Court will effectively write President Trump a blank check to do (almost) whatever he likes, unhindered by law or the Constitution, with the assurance that complex legal justifications of facially absurd positions—say, the consistency of abolishing birthright citizenship with the Fourteenth Amendment—can always be cooked up. The legal establishment’s perpetuation of the fiction that judges do not have political agendas that they bring to bear on their rulings—in effect, its unwillingness to engage in psychologizing of judicial decisions, and insistence that we accept that the patterns of partisan rulings we see from the likes of Alito are just coincidences—has, I suspect, played a genuine role in enabling judges to feel unconstrained to rule in this way. They will not be called out for naked partisanship by the colleagues whose opinions they value most, because it is against the norms and niceties of the elite legal world.

On balance—and against Flowerree and Smyth—it seems to me that public discourse is worse off if we all constrain ourselves to participate in this pretense. Even if it is disrespectful to psychologize figures like Alito—and I have my doubts about how disrespectful it is, given how widespread partisan motivated reasoning is, and how obscure our own motives are to us—sometimes disrespect is a price worth paying. In cases like Alito’s, we must call a spade a spade.