Samuel Alito is wearing a numberless Philadelphia Phillies uniform, standing next to Phillies legend Richie Ashburn, the hittingest batter of the ’50s and a childhood hero of his. He looks happy.
“Back when I was on the Court of Appeals, when I was forty-three, my wife signed me up for Phillies Phantasy Camp,” he tells me. “I never would have done it, but it was a Christmas present.” Phantasy Camp is the aging baseball junkie’s nirvana. For a week, campers train with athletic professionals, drill with former players, square off against one another, and, on the last day, play a game—with real MLB rules—against Philly old timers. Alito, a Little League veteran who has coached his son’s baseball team, says he loved it. Before I can think of a tactful way to broach the subject, Alito begins telling me what it’s like to live with a bunch of white-collar middle-aged guys pretending to be professional athletes. “By the end of the week everybody had pulled their hamstrings,” he says. “The locker room smelled overwhelmingly of Bengay. Nobody could run. Everybody was hobbling.”
I ask him how the final game against the old timers went. “I was up to bat against a pitcher named Al Holland. I’m sure he was trying to take it easy, but when he threw the first pitch I didn’t even see it. ‘This is going to be embarrassing,’ I thought. All I wanted to do was put the ball in play, so I started to swing before he even released the pitch. I managed to get a ground ball. It was a moral victory.”
He laughs and places the photograph back on a shelf stuffed with championship hats, team towels, ticket stubs, and newspapers whose headlines announce big Phillies wins. “My wife threw this stuff out of the house,” he says. “It landed here.”
When I sat down with Alito in his Supreme Court chambers back in March, I worried for a moment that we might spend the entire afternoon talking about baseball. Alito and the game go back a long way, much further than Alito and the law, to his childhood in Hamilton Township, New Jersey, a suburb of Trenton. “We’d go to doubleheaders on Sundays at Connie Mack Stadium,” he says. “We would sit along the right-field line. The tickets were a dollar and a half, so for the four of us, my parents, my sister, and me, it was six bucks.” In 1972 when he cheekily declared his ambition to “warm a seat on the Supreme Court” in his Princeton yearbook, he was secretly nursing a fantasy of becoming commissioner of baseball, also a onetime wish of President George W. Bush.
Alito was born in Trenton in 1950 to Samuel Alito, Sr., and Rose, both teachers. (The elder Samuel later became a researcher for the New Jersey Legislature.) Trenton was then a prosperous middle-class city home to the Roebling Steel Mill, his paternal grandfather’s employer, and other factories that produced textiles, ceramics, cigars, dolls, fiberglass boats. Since 1935, large white capital letters on the Lower Free Bridge connecting the city to Morrisville, Pennsylvania, have proclaimed the city’s motto: “Trenton Makes, The World Takes.”
But heavy manufacturing has long since departed the Garden State capital. It shows: Trenton’s population is now just above 84,000, down from 128,000 in 1950. Per capita income for its residents is $17,400, far lower than the national average. It is the fourth most dangerous city of its size in the country. For decades its largest employer has been the state government, but 20,000 of the civil servants who swarm into Trenton on weekdays live in the still-affluent suburbs rather than the city itself.
“Things have unfortunately changed a lot,” Alito says. “A couple of years ago I drove my mother around the areas of Trenton where she had grown up. It was very depressing.” He catches my smile as I repeat the old slogan to him. “People joke about it, but it was true. At one point the city was a model for America. It really has deteriorated.”
Alito might have been born when American industrial manufacturing and the middle-class prosperity that it made possible were at their tranquil zenith, but he came of age during the tumult of the late 1960s. “All that is very vivid in my memory,” he says. “Though it is disturbing for me to think that the distance between then and now is like the distance from then to the ’20s,” he adds. “The ’20s by that time seemed pretty remote.”
In 1968, more than 200 businesses were looted in Trenton during a series of riots that, though less destructive than those that took place an hour away in Newark, were nevertheless far reaching in their consequences. “The city never really recovered,” Alito says. “It’s sad. The people living in the city were the ones who were plagued by crime then, and they are the ones who are plagued by crime now.”
He asks me whether young people are aware of the shootings at Kent State University that killed four students and wounded nine others in 1970, his sophomore year at Princeton. “Most people in their twenties and thirties may not even remember that there was something called the ‘War in Vietnam,’” he says. “This is ancient history, and most people don’t know history.”
Nineteen seventy was also the year that Alito signed up for Princeton’s ill-fated ROTC program. What was supposed to have been a two-year training program was cut to one year before being shut down entirely—at least on campus. He and his fellow cadets attended drills and classes off-campus. “We had to go down to the armory. Everything was inside so that nobody could see what we were doing,” he says. To this day he is rankled by his alma mater’s decision. “I was more than disappointed that they threw ROTC off campus,” he tells me. “It was an unprincipled thing to do.” For him faculty and student disapproval of the Vietnam war was beside the point. “Unless,” he adds, “you think that the United States should not have military forces or you think that being an officer in the military is beneath the dignity of someone who goes to your university.”
While at Princeton, Alito became interested in a topic that has concerned him throughout his judicial career: privacy. In 1971 he chaired a student-run conference on “The Boundaries of Privacy in American Society.” His name appears prominently at the top of the conference’s nine-page report, a strikingly prescient document that expresses concerns over computer record storage, anti-sodomy laws, wiretapping and other forms of electronic surveillance, polygraphs, and personality tests administered in schools and hospitals. Four decades old or not, the report’s conclusion reads as if it could have run recently in the pages of Reason magazine or been spoken by Rand Paul during a filibuster:
The erosion of privacy, unlike war, economic bad times, or domestic unrest, does not jump to the citizen’s attention and cry out for action. But by the time privacy is seriously compromised it is too late to clamor for reform. We must begin now to preserve privacy, and the first step is for Americans to understand the threats to privacy we now face and the threats inherent in our technological society.
After spending his senior year studying in Italy, Alito graduated in 1972 and attended Yale Law School, where he was editor of the Yale Law Journal. He then clerked for Judge Leonard I. Garth of the United States Court of Appeals for the Third Circuit before becoming New Jersey’s Assistant United States Attorney, a position he held from 1977 to 1981.
When he came to Washington, D.C., to serve as assistant to Solicitor General Rex Lee in 1981, the Reagan Revolution was in full swing. As a Justice Department employee, he was prohibited from getting involved in politics, though he did donate small sums to the campaigns of various New Jersey Republican hopefuls. (He also tried his hand at freelance journalism, pitching articles to National Review and The American Spectator.)
“I was a kind of secret conservative,” he tells me. His political views remained more or less unknown to his superiors until he ran into Charles Fried, Lee’s successor as solicitor general, at a meeting of the Federalist Society: “They used to have these lunches at a Chinese restaurant. Charles was there and he came up to me and said, ‘Oh, what a surprise to see you here. This is like meeting a friend at a bordello.’”
Fried was pleased that this talented young mind seemed to be on the administration’s wavelength. He handed Alito projects at which other, less conservative junior staffers balked, including cases to be argued before the Supreme Court. At the Justice Department, Alito also grew close to Charles Cooper, then a deputy in the Civil Rights Division, now one of the country’s most in-demand civil litigators and a Washington legal institution unto himself. (“Chuck” Cooper defended California’s gay marriage ban before the Supreme Court last year.) When Cooper became head of the Justice Department’s Office of Legal Counsel, he suggested that Alito become his deputy.
Alito was eager to accept the offer, but things would not prove so simple. “I would have thought that if Chuck wanted me to work for him, that would be the end of it,” he says. “But there is a tendency in most administrations to try to reward people who have worked on political campaigns or for the party, and I hadn’t done any of those things. I had to go over to the White House for an interview with this political guy. He was really skeptical of me, but he told me to go write something really fast and explain why we ought to allow you to go into this political position even though we’re kind of dubious about you.”
One item on his application, a line about Concerned Alumni of Princeton (CAP), was to bring him grief two decades later during his Supreme Court confirmation hearings. The group’s origins are mysterious. Some say that CAP was founded with the sole intention of eliminating coeducation at the university; others claim that CAPers simply wanted to bring ROTC back to campus. However it came into being, in late 2005 this obscure right-wing outfit assumed for President Bush’s opponents a bogeyman quality. Ted Kennedy and his Democratic colleagues in the Senate hounded Alito relentlessly about the reference to CAP. “I have no recollection—I said this many times during the confirmation—of Concerned Alumni of Princeton,” he says. “But I did write that I had been a member. That’s all I know about it.” Unless I’m misreading the twinkle in his eye, this is as close as I am likely ever to get to hearing a Supreme Court justice admit to padding his résumé.
Alito got the job in 1985, the same year that he married Martha-Ann Bomgardner, with whom he has two children, Philip and Laura. Like First Lady Laura Bush, Mrs. Alito is a former librarian. (They had met years earlier when she was working as a law librarian in New Jersey.) As George W. Bush put it when he announced his nomination of Alito, “Sam and I both know you can’t go wrong marrying a librarian.”
After his stint at the Justice Department, Alito went back to New Jersey again, this time as U.S. Attorney. His tenure there coincided with the decline of the mafia, thanks to a number of successful high-profile prosecutions in New York City. “It was getting toward the end of the old organized crime era,” he says. In 1989 Alito brought racketeering charges against Giovanni “John the Eagle” Riggi, allegedly the acting boss of New Jersey’s DeCavalcante crime family, the outfit that inspired The Sopranos. Prosecuting this and other cases—corporate fraud, drug trafficking, political corruption—made Alito known as a staunch law and order man. He held onto this reputation for years afterward, and in 2005 a number of important law enforcement organizations came out in support of his nomination.
“I thought we were doing good work,” he says. When I ask him about public perceptions of New Jersey, he admits that the state has had problems with crime. “It’s an interesting place,” he says. “A lot of people poke fun at it, but it’s third in the country for per capita income, in the top five for percentage of the population who have gone to college. It’s full of affluent, well-educated, sophisticated people. I still regard it as my home.”
As a judge on the United States Court of Appeals for the Third Circuit, a position he held from 1991 to 2006, Alito distinguished himself as a robust defender of the First Amendment. He wrote majority opinions striking down a Pennsylvania school district’s anti-harassment policy and upholding the right of a Muslim police officer to keep his beard. He dissented when the court ruled against an elementary school student whose “I’m Thankful for Jesus” poster had been removed from a Thanksgiving display and whose first-grade teacher would not allow him to read an adaptation of the Book of Job when students were asked to share their favorite stories with their classmates. (The teacher told the boy’s mother that reading the story aloud in the classroom would have been “the equivalent of ‘praying’” and suggested that her son was not “public school material.”) Alito’s was also the lone dissent in Planned Parenthood v. Casey, in which he argued that a provision of the Pennsylvania Abortion Control Act of 1982 that required women to notify their husbands before procuring abortions should have been left intact. (This provision was ultimately struck down by the Supreme Court.)
When the first President Bush nominated Alito to the Court of Appeals it was a breezy affair: an interview at the White House with Solicitor General Ken Starr and his then-deputy John G. Roberts and unanimous confirmation in a Senate with a Democratic majority. His fifteen years there were low profile, outside legal circles. “It’s the most isolated job in the world. The public pays very little attention to what the courts of appeal do,” he says. “Even when a court of appeals decides a case that captures the public’s attention, an article will say that a federal appeals court in Philadelphia or New York did this or that. There won’t be anything about Judge Alito.”
He was not prepared for the scrutiny to which his life and judicial record were subjected in 2005, when Bush announced on Halloween that he was nominating Alito to the Supreme Court. “I was trailed every second,” he says, “from the time when the car dropped me off at the entrance to one of the Senate buildings, where I immediately went to meet with senators, until I got back in the car to leave. Those photographers must have taken thousands of still photos. I don’t really know why they needed so many.”
This was the beginning of one of the most contentious debates over a presidential appointment in recent American history. Alito assures me that he was joking a few years ago when he told a reporter that he does his best to walk as quickly as he can past the Hart Senate Office Building. But his memories from late 2005 are not happy ones. “In retrospect it was an interesting and at times humorous experience,” he says. “At the time it was an absolutely miserable experience.”
The seat in question was being vacated by the moderate Sandra Day O’Connor, and some argued that her replacement should be of the same judicial bent. Columnists spoke of the need for a justice who would “respect precedent.” (In most cases the “precedent” to which they were referring, sometimes less than obliquely, was that of Roe v. Wade.)
Because Alito did not fit the bill, he was smeared from the first as a kind of club-wielding judicial thug, a reactionary who interpreted the Constitution as an ancient Babylonian might have read the Code of Hammurabi. Various left-wing organizations declared him “outside of mainstream American values.” A throat-clearing unsigned editorial in the New York Times spoke of a “lengthy and often troubling record he will have to explain away” and excoriated President Bush for not having chosen “a pragmatic, mainstream conservative.” A band of reporters tracked down Alito’s ninety-year-old mother at her home and began pressing her for her son’s views on abortion. (A chance phone call from Alito sent them packing.)
For a time it was widely suggested that either Alito or the administration had not told the truth about the birthplace of Samuel Alito, Sr. “One night I got a call at around eleven o’clock at night from Steve Schmidt, who was handling the confirmation process at the White House. ‘They’re saying that you lied about your father being born in Italy. This is on the Internet. It’s just a matter of time before it gets into the rest of the media.’”
The original birther controversy was put to rest when the Boston Globe hired a genealogist, whose research revealed that the elder Alito had emigrated from Italy with his family when he was an infant, which had been Alito’s story all along. “It was the most bizarre aspect of the confirmation process,” Alito says. “But I was able to discover things about my family without having to pay for the genealogist, though.” He shows me a framed copy of his father’s birth certificate. “The Italian embassy gave it to me after I was confirmed. They had somebody go and look at the records in the little town where he was born.”
Alito objects most to those who, during confirmation, called his professional standards into question—specifically, the charge that he had improperly failed to recuse himself in a case against several investment firms, including Vanguard Group, in one of whose mutual funds Alito had invested. (Judges are often encouraged to invest in mutual funds because they are less likely to give rise to conflicts of interest than conventional stocks.) “It was an utterly bogus ethics issue,” he says. He explains that after the case was decided he received, from a law professor representing the man who had brought the suit, a letter suggesting that because of the structure of the fund he ought to have recused himself and thus the case should be reheard. “So I went back and I did recuse myself,” Alito tells me. “The appeal was done over without my participation, and it was decided the same way. Later it turned out I was not under any obligation to recuse in the first place. I had around 300 cases a year on the Third Circuit, so you do the math and see how many cases that is altogether. But I was bedeviled by Senator Kennedy and a member of his staff about this one case. It was very disturbing.”
Eight years after being confirmed with a margin of sixteen votes, the same number by which Robert Bork’s nomination had failed in 1989, Alito is comfortably ensconced on the Court and none the worse for wear. (When I ask him whether he thinks we will see more fiercely partisan battles over judicial nominations, he responds pessimistically: “I hope what I experienced will not happen again. But it’s like the Hatfields and the McCoys: One party says, ‘Oh, you did that? Well, we’re going to do the same thing when it’s your nominee.’”)
He and his wife live in Washington, but Alito is still a Garden State suburbanite at heart. Always self-deprecating, he has described himself as “nerdy” and “a very boring person.” When I ask him what he reads, he mentions Willa Cather, not Politico, and he tells me that he has never heard of Mark Leibovich or This Town. He says that he gets his news mainly from both of the Washington papers and the Wall Street Journal. His idea of a social outing is taking his entire staff at the Court to a Nationals game.
His views about the legal profession are similarly unsnobbish. Between 2009 and 2010, only two of his eight clerks came from Ivy League law schools. He tells me that he has no time for law school rankings. “I really don’t like this categorization of schools as first, second, and third-tier,” he says. “The U.S. News and World Report rankings of law schools are an abomination. The legal profession and the country would be better off if they were eliminated. I gather that all these rankings are one of these things that keeps U.S. News and World Report in the black—unlike Newsweek.” Nor does he set much stock by the all-important Law School Admissions Test. “Law schools put too much emphasis on this one multiple choice test. What in life is a multiple choice test? But those rankings are very heavily influenced by LSAT scores.”
When he tells me that he is done making appearances at the State of the Union, I ask him about the last time he attended, in 2010, when he mouthed what looked like the words “Not true” in response to President Obama’s characterization of the Court’s ruling in Citizens United v. Federal Elections Commission. “I don’t play poker,” he says. “Either I should take it up so that I learn to have a poker face, or it’s a good thing that I don’t because I’d lose a lot of money. People thought I said something. I assume that they’re correct. I certainly thought it. The president said that Citizens United overruled a century of precedent, which just isn’t true. The chief justice has said that he thought that the president’s criticizing us while we were sitting there was inappropriate. I don’t know that something like that has been done before.”
The Citizens United incident notwithstanding, I get the sense that Alito has other reasons for not wanting to attend the State of the Union. “It’s very strange to go as a justice,” he tells me. “We sit there like potted plants. People who watch on television have no idea what’s really happening on the floor. There’s a lot of back and forth between the Democrats and the Republicans. They keep up a running commentary on what the president is saying. Some of it is pretty sharp. None of that is ever picked up because it’s Congress’s home turf. There are boom mikes around, so I think they could probably pick up these comments if they wanted to, but I guess that’s off limits.
“We sit there and the president will say something and members of the president’s party will stand up and start applauding. Members of the other party often will not. But every once in a while the president will say something that is nonpartisan. ‘The United States is a great country.’ ‘We support our men and women in uniform.’ Then everyone’s applauding and standing. We look foolish sitting there, so we stand up and start to applaud. And then we’ll get faked out. The president will get say, ‘This is a great country’—and everyone will stand up and start to applaud—‘because we’re gonna do this, we’re gonna enact this legislation.’ It’s a very odd experience.”
Whatever his relationship with the president (who as a senator got behind the failed effort to filibuster his nomination in 2005), Alito is on good terms with his fellow justices, including those whom Obama appointed. “We disagree, sometimes pretty sharply, about legal matters, including legal questions about which we each feel pretty strongly,” he says. “But I have never experienced any personal unpleasantness in dealing with any of my colleagues. I’ve never questioned their good faith. We all do what we think is right. We disagree. When we disagree we express those disagreements in opinions, but our personal relations have been good.”
He is quick to point out that intellectual deference and good manners have not always won the day at 1 First Street. “There was a book a couple of years ago called Scorpions about four justices who were appointed by FDR—Black, Douglas, Jackson, and Frankfurter. These were very strong intellects, strong egos. They were all appointed by the same president and they agreed about most issues, but there was a lot of personal animosity there. We have not had that, which makes daily work pleasant. Probably it increases the quality of our work to a degree. Personal nastiness wouldn’t achieve anything.”
But Alito’s insistence upon collegiality has not stopped him from writing his fair share of lone dissents and narrow concurrences. In recent years, many of these have been in cases involving the First Amendment. In United States v. Stevens, he argued that the Court was wrong to strike down a federal statute banning the production and distribution of so-called “crush videos.” These videos are more or less what their name suggests: short films in which animals, often cats or other mammals, are stomped to death, usually by women wearing stiletto heels. They are, as Alito put it in his dissent, “a form of depraved entertainment that has no social value,” depicting activity that is illegal in all fifty states and the District of Columbia.
“In Stevens I thought that the real restriction was on conduct, on animal cruelty, rather than on expression,” he says. “There is virtually no way to prosecute the people who are involved in these acts. If you say that you can’t circulate these videos it dries up the market for them.”
The day after the Court announced its decision, a new bill banning crush videos was introduced in Congress, one whose narrower language showed the unmistakable influence of Alito’s dissent. President Obama signed the Animal Crush Video Prohibition Act of 2010 into law later that year. It remains on the books.
Alito was again the lone dissent in Snyder v. Phelps, in which the Court ruled that it was a form of constitutionally protected speech for the Westboro Baptist Church to picket the funeral of Matthew Snyder, a Marine killed in Iraq. (With the death of the Reverend Fred Phelps in March, members of the congregation may have lost their wherewithal, but not their right, should they choose to exercise it, to chant “God hates fags!” in the presence of grieving families.) Alito argued that the actions of Phelps and Co. fell outside the First Amendment and within the range of the tort known as intentional infliction of emotional distress. His opinion begins with a catalogue of constitutionally protected options for the Westboro Baptists. It is a masterpiece of rhetoric:
Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.”
It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.
“Snyder was a tough call,” he says. “Obviously eight of my colleagues disagreed with me.” I ask him what Stevens and Snyder tell us about the limits of the free speech. “The core of the First Amendment is political speech. Any restriction of political speech I think is very dangerous. That is what was involved in Citizens United. This was speech about a candidate for president. What could be more important than that? It’s about the free exchange of ideas concerning public policy, economics, science, art, religion, philosophy, all of those things.
“Now I can’t speak for my colleagues, but I think I understand the impulse to say that we cannot tolerate any restrictions on freedom of speech because if we allow it even when it’s something like a video of a woman stomping a little animal, then that kind of limitation will begin to restrict the things that need to be covered. But if a court is going to allow restrictions on political speech or intellectual debate or discussion of the arts, our having ruled on these outliers is not going to stop it.”
Here, I cannot help but think, are hints of what sounds suspiciously like common sense. Is the law really incapable of distinguishing between videos of illegal animal cruelty and of, say, a father and son deer hunting? Is yelling anti-gay epithets at the grief-stricken families of non-homosexual veterans really protected by the First Amendment? These are questions that ordinary Americans understand, and many people’s answers would, one suspects, tend to line up with Alito’s. Common sense is not the touchstone with which constitutional metal is assayed. But it helps.
As the justice with the least seniority on the court’s right wing, Alito is rarely given major cases when writing in the majority. He admits that writing dissents tends to be more enjoyable and that all of his favorites among his own opinions are dissents or concurrences. “If you’re writing a majority opinion, where you have to have at least four people agree with you, you’re limited in what you can say,” he tells me. “In my dissents I’m writing for myself, so they’re more freewheeling.”
Bryan Garner, a Distinguished Research Professor at Southern Methodist University’s Dedman School of Law and the editor of Black’s Law Dictionary, considers Alito an exemplar of legal style and agrees that the associate justice’s best work has been outside the majority. “He writes in plain English, with a good, ample vocabulary,” Garner says. “His sentences are short to medium length, never florid. There are no tangents. He is a master of narrative.” Garner says that readers of Alito’s opinions never struggle to understand them, that the justice’s meaning is always apparent after a single reading. He also praises Alito’s use of simile and metaphor, singling out his concurrence in Montejo v. Louisiana, in which he wryly takes John Paul Stevens to task for his logical inconsistency:
I can only assume that the dissent thinks that our constitutional precedents are like certain wines, which are most treasured when they are neither too young nor too old, and that Jackson, at 23, is in its prime, whereas Belton, at 28, had turned brownish and vinegary.
Alito’s opinions have been praised for reasons other than their style. A study published in 2010 found that he “was the most consistent user of gender-neutral language” on the Court. He seems amused when I quote this to him. “Wow,” he says. “I’ll take any compliments I can get.” Unlike Justice Scalia, who has dismissed even discreet solutions to the supposed problem as “second-best circumlocution,” Alito often writes with plural subjects and rarely uses the pronoun he generically. “I don’t think it’s sexist,” he tells me. “But if I can avoid using language that some people will find objectionable or denigrating to women, then I will.”
Unlike Justices Scalia, Ginsburg, Breyer, and, to a lesser extent, Kagan, Alito is not widely recognized as a legal theorist in his own right. He is, in the strictest sense, a practical jurist. Since he has never been a full-time academic (though he taught on an adjunct basis), nearly everything he has ever said about the law and its interpretation has been in the courtroom rather than the classroom.
“We’re now, I think, the most academic Supreme Court that has ever existed: four of my colleagues were full-time, very distinguished law professors,” he tells me. “I was not.” While he says that he values legal scholarship, he also insists on what old-school Marxists used to call the distinction between theory and praxis: “We are sort of like artisans,” he says. “What we are doing is not abstract. It has an effect on the real world.”
Nowhere is the importance of the real world to his thinking more evident than in Alito’s opinions dealing with privacy. In United States v. Jones, he wrote what reads very much like a concurrence-in-name-only. While agreeing with the majority that placing a GPS on the car of a suspected drug trafficker without obtaining a warrant was indeed a search under the Fourth Amendment—the Court was not ruling, or rather did not choose to rule, on whether the search was reasonable—he made a distinction between physically tracking a person for a short period of time and using a GPS to monitor someone’s movements at length. The former, he said, is consistent with a reasonable expectation of privacy; the latter is not:
The Court argues—and I agree—that “we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’” But it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?)….The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.
Alito’s concern for privacy has brought him praise from some unlikely corners. Jeffrey Rosen has dubbed him “America’s privacy cop” in the Washington Post. Mark Joseph Stern of Slate, who previously dismissed Alito as a rightist crank, now calls him the man who “will save America’s privacy.”
With Jones in mind, I ask Alito whether he subscribes to originalism, the approach to constitutional interpretation favored by Justices Scalia and Thomas and one with which he is sometimes associated. “I start out with originalism,” he says. “I do think the Constitution means something and that that meaning does not change. Some of its provisions are broadly worded. Take the Fourth Amendment. We have to decide whether something is a reasonable search or seizure. That’s really all the text of the Constitution tells us. We can look at what was understood to be reasonable at the time of the adoption of the Fourth Amendment. But when you have to apply that to things like a GPS that nobody could have dreamed of then, I think all you have is the principle and you have to use your judgment to apply it. I think I would consider myself a practical originalist.”
The specter haunting our conversation from the moment privacy comes up is the NSA, which I cannot ask him about because a challenge to the agency’s domestic surveillance program may come before the Court next term. But his comments about violent video games—the subject of another of his not-quite-concurrences—tell us something about his attitude toward technological change. “We need to be humble,” he says. “We need to own up to the fact that we are a lot older than a lot of the population. We don’t have the same level of experience with these things that a lot of people do.”
He is being a bit modest. Though Pac-Man is the only video game he has ever played, he is no Luddite. He now reads his briefs on an iPad. “I used to carry around huge litigation bags,” he says. “Now, for better or worse, I’ve got them with me at all times. I never have the excuse of saying I’m home and can’t read them.” He is also a dedicated reader of blogs that track appellate law. “That way I get a sense of what’s coming toward us. And I read a lot of other things online. I guess that’s the future.”
In a would-be synthetic moment I ask him whether there is a connection between his New Jersey roots and dogged support for a perennially losing baseball team, and his willingness to come down strongly opposite a majority. “You know, there might be,” he says, smiling. “There are dubious studies all the time, but years ago there was one on the development of people who root for teams that always win versus teams that always lose. It found that rooting for a losing team promotes critical thinking.”
He pauses, smiles again, and shifts gears.
“Maybe it’s stubbornness, stubbornness to stick with something. Of course it doesn’t do anything, and it’s not fun being on the losing side.”
“But there’s a certain pleasure in it.”
I think about this for a moment. Lots of things are pleasurable: eating out, getting drunk, waking up late, seeing one’s enemies humiliated.
If dissenting in Snyder v. Phelps is Samuel Alito’s idea of pleasure, he is one of the least epicurean people on the planet. He is also, in his unspectacular way, one of the noblest men in American public life today.
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