Alito: The practical justice

For 10 years plus, WORLD has covered each of the 60 to 70 cases the Supreme Court hears each term, from oral argument to decision. That means our listeners have come to know the justices not only by their rulings, but by their voices. That’s one of the surprises of sustained court coverage: Good reporting reveals the human side of the justices—their habits, temperaments, assumptions, strengths, and styles of persuasion.

Mollie Hemingway takes that same close look at one of the most consequential justices of our time in her new book, Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution. She sets out her ambition right in the subtitle. But after reading the book and interviewing Hemingway, I think she fairly backs it up.

Hemingway’s Alito is not mere admiration. It is deeply reported legal history. She interviewed about 100 people and joked in an interview at the Heritage Foundation that the reporting became “a little boring” because nearly everyone praised him. But that consistency is part of the evidence: The book is a serious account of how character, conviction, and prudence shape institutions.

Years of WORLD’s own court coverage help explain why Hemingway’s portrait rings true. My colleague Mary Reichard, who has listened to hundreds of hours of oral arguments, describes Alito as pragmatic, skeptical of government, skeptical of the expert class, and unusually attentive to ordinary people. She remembers cases in which he seemed unexpectedly fluent in things like municipal garbage collection, rural water systems, and tomato farming.

A former Alito clerk, Jack White, once told Mary and her fellow legal-affairs journalist Jenny Rough a story that captures Alito’s humility. One weekend, White found Alito in chambers and wondered why. Alito answered, “That 30 minutes that that litigant has before this court is likely to be one of the most important 30 minutes of [his] life. [It’s worth a] little bit of my time on the weekend.”

Alito’s humanity is not sentimentality. Hemingway calls him a “practical originalist”: committed to constitutional text and original meaning but deeply concerned with how a ruling will work in real life. What makes Alito so different, even among originalists? Is he more willing than some originalists, even fellow Catholics who’ve served on the bench, to recognize moral dimensions in the law? Hemingway said yes. Alito, she told me, is “much more inclined to see justice as something with an at-heart moral component.”

That could be dangerous if detached from constitutional limits. Judges who claim moral insight can become legislators in robes. But Hemingway’s point is subtler. Alito’s moral seriousness binds him more tightly to the judicial role. He does not believe the court should invent rights or policies and hide them in constitutional language. He wants justices to be, as Hemingway put it, “at heart, judges.”

The through line of the book is the 2022 Supreme Court decision that overturned Roe v. Wade—Dobbs v. Jackson Women’s Health Organization, which returned abortion law to the states. Alito had written major opinions before, but Hemingway argues history will remember him chiefly for Dobbs. The arguments against Roe were not new. Even some pro-abortion legal scholars had long considered Roe weak constitutional law. The court had opportunities to correct it, most notably in 1992 in Planned Parenthood v. Casey. Instead, the court preserved the abortion right, rewrote the rationale, made it worse, and told the country, in effect, to stop arguing.

If anything, Casey provoked more arguing.

By the time Dobbs reached the court, Mississippi’s lawyers were advised not to ask directly for Roe to be overturned. They were told to give the justices an off-ramp. They refused. That decision forced the court to face the question it had avoided for nearly 50 years.

Justice Clarence Thomas, the senior justice in the majority, assigned the opinion to Alito. The majority was five votes. It had to hold. “He takes their edits,” Hemingway told me. “He’s happy to include what he might think is an unnecessary phrase, but if it’s important to someone else, he’s generous with his prose.” That is rare.

Some care only about being right. Others care only about winning. Hemingway sees Alito as a rebuke to both errors. The lesson of his life, she told me, is that “values and principles” are not meant merely to exist in one’s head. They are meant to benefit people. Hemingway’s skillful marshaling of specific detail makes that clear. In any vocation, she said, the question is how to serve God by serving others.