We always knew US Associate Justice Sam Alito (R) had a mediocre aura and a partisan bent, but before the Great Kentucky Turtle stole Merrick Garland's appointment and rushed through Comey Barrett's, Alito at least sometimes pretended to understand that the Supreme Court's legitimacy rested in part on people perceiving it as non-partisan.
This week he decided to abandon that pretense. First, when his questions in US v Idaho on Tuesday revealed that he has no interest at all in protecting adult women from pain or suffering:
The case, United States v. Idaho, is about whether emergency rooms in Idaho—a state that bans all abortions except those done to prevent death, not to preserve health—are in violation of a federal law that requires E.R. patients to be stabilized. The Emergency Medical Treatment and Labor Act, or EMTALA, says hospitals that accept Medicare funding have to stabilize patients facing threats to their health, and for pregnant patients facing complications, the treatment is sometimes abortion.
During arguments, some of the male justices seemed content to talk about whether EMTALA’s funding conditions are an appropriate use of the Constitution’s spending clause, while the women were focusing on the medical harm Idaho’s law has caused to living, breathing women. Late in the argument, Alito—who wrote the majority opinion in Dobbs that allows laws like Idaho’s to be enforced—was upset that not enough time had been devoted to the existence of the words “unborn child” in the law about emergency room care.
Alito seems to have a habit of trying to slip one over the American public. In the other abortion case this term, concerning the fate of the abortion drug mifepristone, he referred to the Comstock Act not by name, but by statute number, 18 U.S.C. 1461. Comstock is a dormant, Victoria-era law that the power-hungry folks behind Project 2025, the proposed agenda for a second Trump term, expect the former president to revive and enforce in order to ban the mailing of abortion pills—if not all clinic supplies—should he win a second term.
Two days later, during oral arguments about whether the President of the United States can be held criminally liable for at all for actions taken while in office, Alito again expressed some opinions that would have made James Madison's blood boil:
During oral arguments, several Republican-appointed justices expressed concern that without immunity, former presidents might suddenly begin to face criminal prosecution with regularity. But Alito took this entirely hypothetical concern to an absurd conclusion: He worried that if presidents believed theirs successors could prosecute them, they might refuse to leave office peacefully when they lose reelection. Put another way, presidents need immunity from prosecution in order to encourage them to accept electoral defeat and preserve American democracy.
Considering that this entire case is about a president who sought to illegally remain in office—and whose supporters staged a violent insurrection to help him do just that—this was a stunning argument to make.
The irony of using Trump as the vehicle for enhancing presidential immunity out of a fear of increased instances of political prosecution never came up. But it’s worth remembering that Trump was elected in 2016 on a platform of locking up his political opponent. Throughout his presidency, he tried to use the Justice Department to launch politically motivated prosecutions and was dismayed that the norm of the department making its own prosecutorial decisions did not break down. He has even complained bitterly that his attorney general and other federal prosecutors refused to help him steal the election.
Josh Marshall has said that the entire Republican contingent on the Court is now nakedly partisan, and therefore nakedly corrupt. But we can still marvel at how far Justice Alito has strayed from anything resembling normal American jurisprudence.