THE SHADOW DOCKET MAN

Our nation is falling apart. Four years of Trump ignited the blaze. Congress bought into Trump’s craziness. Biden has his hands full with both at the moment.

Normally, we could look to the Supreme Court as the sensible body of government. That too has eroded.

Woe is we!

The Supreme Court is moving especially fast in a downward slide. Americans know little about the Justices. Over the next couple of weeks, I am going to write about each of the nine.

It is important to know the nature and background of those making monumental decisions concerning our lives.

Today, Associate Justice Anthony Alito Jr.

One of the worst, one of the most dangerous.

Alito is a brilliant legal mind. However, it runs in the wrong direction. Contrary to what is good for the American people. I will attempt to spell out his shortcomings during the course of this blog.

Alito was appointed by George W. Bush. Took his seat on the Supreme Court bench January 31, 2006. He is now a 15 year veteran of that Court.

Prior to the Supreme Court, Alito was a Judge on the Federal Appellate Third Circuit for 16 years.

Alito’s total judge time 31 years. For some, too many years. The job affects some mentally. They come to believe themselves omnipotent. Know everything. Know what is best. Can’t be wrong.

Alito is the second Italian-American on the Supreme Court. Antonin Scalia the first. Both great legal minds. However, their thought processes running in the wrong direction.

As with Scalia, Alito is “considered one of the most conservative justices on the Court.” I agree. In fact with Scalia now gone, he is the most conservative.

Alito is proud of his far right conservative thinking. He describes himself as a “practical originalist.”

As expected, he is a member of the Federalist Society. A group that supports neither liberal nor middle class causes. The Federalist Society is a group of conservative and libertarian lawyers and legal students interested in conservative legal theory.

Alito had his problems before the Judiciary Committee. He is compared to Clarence Thomas and Robert Bork in that regard.

Re abortion, Alito said before the Committee he would look at abortion with an open mind. However, he would not state how he would rule on Roe v. Wade if that decision were to be challenged.

His record shows a willingness to support government actions that abridge individual freedoms. However such willingness is not to be expected in COVID decisions. Alito spoke before the Federalist Society on November 20, 2020. He commented about the COVID-19 pandemic.

Alito bemoaned what he called the “loss of liberties,” saying, “We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.” He called the pandemic “a Constitutional stress test.”

He appears concerned about the adverse criticism he and the Court are receiving re the Texas abortion case which came before him for a quick review. He referred to the “shadow docket” criticism as “silly” and “misleading.”

Alito noted the term shadow docket was coined in a 2015 law review article. It was adopted by “journalists and some political figures” in order to convey the idea that “something sneaky and dangerous” is going on at the high court when it rules on emergency appeals seeking the Court’s intervention. He said, “The picture is very sinister and threatening.” He claimed, “There is absolutely nothing new about emergency applications.”

He made it clear from his perspective that the shadow docket was not a “dangerous cabal” that resorts to “sneaky and improper methods.” That to consider such “feeds unprecedented efforts to intimidate the Court or damage it as an independent institution.”

Some interesting numbers re use of the shadow docket.

In the 16 years from 2001-2017 under Bush and Obama, the shadow docket was used a total of 8 times. The results 4/4. Whereas under Trump in 4 years, it was used 41 times. Twenty eight of the applications were successful.

Alito appears to be in “legal conflict” with Chief Justice Roberts. Alito favors broad decisions. For example, Alito would rather decide against Roe v. Wade than have a minuscule decision which avoids the issue of ruling against Roe totally.

Alito’s philosophical approach is to “destroy.” Roberts is to “preserve.”

Alito is like a race horse with blinders. He drives straight ahead without recourse if he believes his legal decision should rule the day.

Alito views Roberts’ decisions as more political than legal. Obama’s decision re Obamacare being an example. Roberts came up with the “insurance” approach in deciding with the majority.

Scalia was the first Justice to come up with the far out conservative method of deciding cases. Alito, the second. While Scalia was alive, Alito picked up the nickname “Scalito.”

There is a simple way to describe the Scalia/Alito approach to deciding most cases: The Constitution must be interpreted as things were when it was adopted in 1789. Such is “strict construction.” Such also the basis why Alito describes himself as a “practical originalist.”

I have never bought it. Things are not the same today as they were back then. There were no automobiles or planes. No corporations as we know them today. Etc. Think for yourself how things were so different in 1789 than they are in 2021.

How then can you fit today happenings into yesterday in applying the law to be followed?

I went to law school 1957-60. I was taught the Constitution was a living breathing document which changed to fit the times. Nothing is as it was. Change is one of the two constants in life. The other, death.

It is a difficult world we are living in.

Alito’s personality enters into the matter. Supreme Court Justices are invited to attend a President’s State of the Union Address. They come in robes and get front row seats.

Attendance is not mandatory. The Justices come I would assume as respect for the event.

During one of Obama’s Addresses, Alito disagreed with something Obama said. The cameras happened to be on the Justices at the moment. Alito’s lips could be seen moving in disagreement with Obama.

Of course, the matter was front page news the next day. Alito has never returned to a State of the Union Address since. Like it was someone else’s fault. The fault lie with Alito. He should have kept his mouth shut.

Enjoy your day!

 

 

7 comments on “THE SHADOW DOCKET MAN

  1. I agree with you Lou about Libertarians. These pompous basurds are in a world of their own, insensitive to anything but their own inbreeding. They remind me of Jesuits – you know, thinking ONLY they know the “way.”

  2. This question to Lou, what can be done to right this situation with the SCOTUS? How can we have qualified and balanced jurists on the bench, especially in this current political climate of congressional divide?

  3. Democrats are not the solution, politics is.

    How is it that we can have Supreme court Justices who are active politically, or their immediate families are?

    Can’t we make attending ANY political event by a Supreme Court justice impeachable?

    How is it Clarence Thomas’ wife can be a first rate political operative and HE somehow not be accountable?

  4. Hmm, I guess I do not get a response from Lou on this one. That is fine, it is a difficult question and be one without a “pragmatic, real world” answer.

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