When Samuel A. Alito Jr. wrote his first opinion on a major abortion-rights case — 31 years ago, as a judge for the U.S. Court of Appeals for the Third Circuit in Philadelphia — it was a bitter dissent. Alito was the lone judge on a three-member panel that heard the case for the highest court for Pennsylvania, New Jersey, and Delaware to favor a spousal-notification requirement for abortion at issue in Planned Parenthood v. Casey. On appeal, that would go on to become a landmark Supreme Court case that, along with Roe v. Wade, preserved abortion rights.
Three decades later, it appears that Justice Alito, a New Jersey native and one of the Supreme Court’s staunchest conservatives, may finally prevail in vastly limiting abortion access in America.
Alito is the author of a draft opinion in the case Dobbs v. Jackson Women’s Health Organization, published by Politico on Monday evening in a leak. In it, Alito concludes there is no constitutional right to abortion, writing, “Roe was egregiously wrong from the start.”
“This is a signature opinion for Justice Alito. It culminates an awful lot of things that he has spoken for and stood for and believed in for decades of his judicial career,” said Craig Green, a professor at Temple University Beasley School of Law. “From start to finish, it’s a very powerful or aggressive opinion. ... There are a lot of arguments in there that cast doubt on same-sex marriage, contraception rights, and rights against sterilization. Even though Alito says, ‘I’m not dealing with that today,’ this opinion casts a shadow, and his career also casts a shadow, on those rights.”
The Roman Catholic son of an Italian immigrant, Alito grew up in Hamilton Township just outside Trenton and attended Princeton University and Yale Law School (and remains a die-hard Phillies fan and tomato pie connoisseur). His path to the bench ran through the U.S. Department of Justice, where he served as a deputy assistant attorney general during the Reagan administration and was U.S. attorney for New Jersey from 1987 to 1990.
In 1990, Alito was appointed to the Third Circuit, where he drew notice as a conservative voice in a liberal district, tending to favor states’ rights and religious rights in his opinions. Some called him “Scalito” — a quieter, more measured version of the conservative Justice Antonin Scalia. But he wrote with a spare style and procedural focus, largely avoiding overtly political rhetoric.
Alito, who is 72, was nominated by President George W. Bush and joined the highest court in 2006.
Alito’s record, including on Casey, had indicated that he was likely to fall on the far right of the court, said John Culhane, a professor at Widener University Delaware College of law.
“Even before Alito ascended to the Supreme Court he had developed a reputation, not only in constitutional law, as somebody with a very conservative, very much antiabortion viewpoint, and not once has he since being selected for the Supreme Court expressed anything but antipathy for the decision in Casey,” Culhane said. “For him to be the one to be assigned to write this says a lot about how radical the decision is — not only its result, but also the language it uses to get there.”
Alito on the court
Alito’s confirmation was a pivotal moment in the court’s history, Green noted. Alito replaced the more moderate Sandra Day O’Connor, pushing the court to the right and making Justice Anthony M. Kennedy the swing vote.
In the years since, Alito and Justice Clarence Thomas have been considered the court’s most consistent conservative voices.
Alito penned dissents to the opinions clearing the way for same-sex marriage and authored the high-profile majority opinion granting Hobby Lobby a religious exemption to the Affordable Care Act’s contraception mandate. He also wrote the opinion in Janus v. AFSCME Council 31, disallowing mandatory dues for public-sector workers who did not wish to be unionized.
Kermit Roosevelt, a professor at the University of Pennsylvania Carey Law School, said that Alito, unlike his conservative colleagues, is not wedded to one specific modality of legal analysis.
“The different justices on the conservative side all have their different brands,” he said. “With Thomas, you have originalism. With Amy Coney Barrett, you have religion-inflected jurisprudence. And [Neil] Gorsuch has his theories about textualism. But Alito I think of really as a voice for conservative ideology. So you’re getting not so much a jurisprudential move here as really an ideological one.”
Culhane said Alito’s overtly political views have also emerged in “politically incendiary” public remarks. “He has really put himself in the public fray,” he said.
In his view, the draft Dobbs opinion tracks with all of that.
“His style particularly in the last few years is kind of a take-no-prisoners style ... essentially being hostile to the idea of these unenumerated rights which the majority of the court has found to be implicit in the Constitution, such as the rights to contraception and to abortion.”
A long-held goal
The opinion published by Politico is labeled “1st Draft” — so it appears to be Alito’s sole vision.
“Now, the horse trading begins,” said Anna O. Law, a professor of political science at Brooklyn College. Now, Alito’s “job is to hold together the majority,” or, even more optimally, to win a 6-3 supermajority to his side.
Roosevelt speculated that the leaker likely agreed with the court’s conservative wing, and released the document to lock in any would-be defectors from the majority. (After all, any conservatives who back out may risk appearing to have buckled under public pressure.)
If Alito’s vision prevails, Roosevelt and others said the legality of same-sex marriage, contraception access, and sodomy bans are all up for grabs.
» READ MORE: Justice Alito's 98-page draft brief
In Law’s view, the opinion foregrounds the role of politics in Alito’s approach — and in the court as a whole.
“It’s the long-held goal of many of the conservatives that they see Roe and Casey as total anathemas. They’re couching it in the language of constitutional law, but really this is pure politics,” Law said.
“Doctrine and precedent are binding,” she added, “until a majority of the justices decide they’re not.”