Kagan at least aspired to influence. Thomas was fully content to be a lone wolf. On issues ranging from executions to affirmative action to race in jury selection, he outflanked even Alito on the right. Thomas said his opinions were a product of undeviating principle rather than rank partisanship, but his decisions almost always hewed to the conservative party line. He was with the conservatives in Bush v. Gore, District of Columbia v. Heller, Citizens United, Shelby County, and Obergefell, and in both Obamacare cases. Only in Obergefell, the same-sex marriage case, did his vote happen to respect the decisions of other branches of government—and in that case his deference happened to dovetail with what conservatives believed.
Scalia, for one, understood that originalism and textualism had interpretive limits. Comparing himself and Thomas—with whom he sometimes commiserated behind closed doors after the Court reached a decision they both abhorred—Scalia liked to explain: “I am a textualist. I am an originalist. I am not a nut.” At least when it suited him, he acknowledged that stare decisis and historical judgment had roles in constitutional law. For example, Scalia conceded that maybe some punishments that were not “cruel and unusual” in 1791 would nowadays violate the Eighth Amendment.
By contrast, Thomas was a self-indulgent purist—or implicitly, by Scalia’s terms, “a nut.” If he thought a case should come out a certain way, that was how he wrote his opinion. Sometimes it was a dissent, sometimes it was a concurrence. Almost never, though, in any case of consequence did Thomas actually write the majority opinion. That was because he wouldn’t brook nuance from a colleague or entertain compromise to win over a vote. If he was right, he was right. If a prior ruling of the Court was wrong, no matter how settled the law had become, it deserved to be scuttled.
Thomas’s self-righteousness, though unflinchingly honest, didn’t translate into influence, a truth exposed in his solitary dissents. In recent terms, his most important moment might have been in early 2017, when he got to swear in Mike Pence as vice president in the Trump administration. Thomas’s supporters in academia and the legal profession, along with a few mainstream journalists, tried to sketch a different portrait. One of the administration lawyers who helped in Thomas’s traumatic Senate confirmation battle in 1991, Mark Paoletta, later created one website after another to promote the justice’s standing, as well as to counter affronts to his honor. At justicethomas.com, you can read pieces about Thomas, the “inspirational justice”; Thomas, “an American masterpiece”; and “Mr. Constitution.” The website also took up the cause of rectifying the omission of any significant mention of Thomas at the Smithsonian’s new National Museum of African American History and Culture. A different Paoletta website, confirmationbiased.com, set out to describe the “truth about” an unflattering 2016 HBO docudrama on Thomas’s confirmation. Paoletta became chief counsel to Vice President Pence.
Despite attempts to lionize Thomas, he didn’t help his own cause, not that it mattered to him. His conspicuous silence on the bench served only to make him appear more marginal. Other justices, current and past, found oral arguments invaluable in honing ideas. But Thomas, unlike his colleagues—who jockeyed to question lawyers throughout the hour assigned to each case—typically said nothing, except perhaps in a whisper to the justices on either side of him. Instead, he settled back in his chair, rubbed an eye, gazed at the ornate ceiling, and for all the grandeur of his surroundings, looked out of it. Until late February 2016, when Thomas spoke up in a desultory appeal involving misdemeanor convictions, a decade had passed since he last asked a question in court. According to the New York Times, it had been at least 45 years since another justice had gone even a single term without asking a question.
On this day, in his gravelly monotone, Thomas asked 11 in a row. Perhaps Thomas wanted to fill the void left by the loquacious Scalia’s death two weeks earlier, especially since the case being argued tangentially involved the Second Amendment. But Thomas didn’t explain his awakening. On many occasions, however, he had offered a range of reasons for his reticence: The other justices already talked too much; he was being courteous; he wanted to “allow the advocates to advocate”; he was self-conscious about the Gullah dialect he retained from growing up in rural Georgia; he’d been rattled in college and law school by more silver-tongued students. Pick one explanation or pick them all, but Thomas didn’t waver from his reserve in the courtroom. And if not for his confirmation hearings, it oddly might have been the most familiar characteristic about him.
At the time of Scalia’s death in 2016, Thomas had been on the Court for nearly 25 years. After Anthony Kennedy retired in 2018, Thomas was senior to all his colleagues, even though he was only 70. After Thurgood Marshall in 1991 announced his retirement—failing to make good on his facetious threat to have clerks “prop me up on the bench” and “keep voting” in the event he died while a Republican occupied the White House—President George H.W. Bush selected Thomas to succeed him. (Waggish Marshall clerks liked to point out that a lifeless Marshall propped up on the bench would have asked no fewer questions than a silent Thomas.)
Before his appointment, Thomas had been an unexceptional federal appellate judge for 16 months and, before that, chairman of the Equal Employment Opportunity Commission (EEOC). His résumé was solid but hardly stellar. Like Marshall, he was African American. Yet Bush claimed he was naming Thomas not because of race but because he was “best qualified at this time.” Their interview—at the Bush estate in Kennebunkport, Maine—lasted six minutes, after which they enjoyed crabmeat and English muffins. A year earlier, Thomas had been among a handful of candidates Bush considered to replace Brennan. Souter got that seat—perhaps because Thomas wasn’t “best qualified” right then.
At 43, Thomas became the youngest justice since William O. Douglas was appointed in 1939 at 40. But even with more than a quarter-century at the Court, Thomas was still best known for his nationally televised confirmation hearings—the nastiest, most unthinkable, in U.S. history. He had been grilled about his views on substantive issues that contrasted him greatly with Marshall, a pillar of the civil rights movement. But it was his personal side that turned the second round of the hearings into a cauldron of race, gender, sex and politics.
A month after Thomas’s initial testimony and two days before the scheduled Senate vote on his nomination, Newsday and NPR reported that a law professor named Anita Hill was accusing him of sexually harassing her when both of them were at the EEOC and the Department of Education. The accusations had been made in a confidential sworn statement to the Senate. Republicans attempted to discredit Hill and called news articles the product of a smear campaign. In his diary, President Bush called the accusations a “chicken-shit operation.” Now, on Friday, October 11, 1991, Hill testified publicly before the Judiciary Committee. The substance of her charges was repulsive and riveting. Over the course of a weekend, 20 million TV households watched—and heard two wholly irreconcilable accounts of a workplace relationship, as well as far too much information about a porn star named Long Dong Silver.
At the Department of Education, according to Hill, Thomas talked to her “about acts that he had seen in pornographic films involving such matters as women having sex with animals, and films showing group sex or rape scenes.” Sometimes, she said, he “told me graphically of his own sexual prowess.” Later, after both had moved to the EEOC, came “one of the oddest episodes,” which the committee chairman, Senator Joe Biden, knew would shock. Before Hill began, he had instructed Capitol Hill police “not to let anyone in or out of that door.” The details were so salacious that those in the Senate gallery gasped when she described them.
Thomas had been drinking his usual Coke in his office, Hill testified. He “looked at the can and asked ‘Who has put pubic hair on my Coke?’ ”
Why had she followed Thomas to the EEOC? Hill defended her decision this way: “The work itself was interesting”; “it appeared that the sexual overtures, which had so troubled me, had ended”; and “I was dedicated to civil rights work.”
When Thomas returned to the witness table Friday evening—with its larger TV audience—he was apoplectic. He attacked his attackers, calling it a “travesty” that “dirt” and “sleaze” and “lies” had been “selectively leaked” to the media by the Judiciary Committee, “displayed in primetime over our entire nation.” The hearings were “a circus” and “a national disgrace.” (Never mind that Thomas himself helped Republicans look for “dirt” on Hill.) He then changed the subject. “From my standpoint, as a black American,” he said, the hearings had turned into “a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas—and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree.” Most of that of course had nothing to do with Hill’s allegations.
Biden, and the rest of the all-male (and all-white) committee, fumbled how to deal with the he-said/she-said narrative. Public opinion sided with Thomas, whose backers were better organized than Hill’s, though there was a good argument to be made that Thomas might not have been confirmed if Biden had stage-managed the testimony of Thomas and Hill differently. Two days after the spectacle ended, Thomas was confirmed 52–48, the narrowest margin of approval for a justice since 1888. The nominee found out while soaking in a bathtub. “He shrugged at the news,” according to Resurrection, an account of the confirmation ordeal by John Danforth, Thomas’s main Senate sponsor. “Whoop-de-damn-do,” Thomas himself recounted.
Whatever his lack of intellectual clout on the Court, Thomas now had a lifelong vote among nine. He became grayer and heavier—he had the best suspenders on the Court—and you never found him working out with Kagan or Ginsburg. But if he stayed reasonably healthy, in 2028 he would surpass Douglas’s record of 36 years on the Court. With that kind of power, Thomas might have moved past the confirmation hearings, but he never let go of his umbrage. It was consistent with the scars he bore all his life. “In my 43 years on Earth,” he told senators that Friday, “I have been able, with the help of others and with the help of God, to defy poverty, avoid prison, overcome segregation, bigotry, racism, and obtain one of the finest educations available in this country. But I have not been able to overcome this process. This is worse than any obstacle or anything that I have ever faced.”
Thomas told the committee—and the country—that he would add “this” to his catalog of grudges. “My name has been harmed, my integrity has been harmed, my character has been harmed, my family has been harmed, my friends have been harmed. There is nothing this committee, this body or this country can do to give me my good name back—nothing.” It was a grievance he endlessly brought up at gatherings of conservative groups and in unguarded late-night exchanges with friends.
Long after the hearings, in appearances before simpatico audiences, Thomas’s rancor was still manifest. Five years later, in a commencement speech at Rev. Jerry Falwell’s Liberty University, Thomas deplored a culture of “victimization” and “a society saturated with complaint.” He then recounted “the unpleasantness of my confirmation,” and how he and his wife Ginni had gotten through only “by God’s grace and on his mighty shoulders.” Two years later, in July 1998, he was back at it. “I, for one, have been singled out particularly for bilious and venomous assaults,” he told a gathering of the country’s largest African-American bar association. Sixteen years after that, he explained to students at another Christian university that “the worst things that have been done to me, the worst things that have been said about me,” were not by Southern racists but “Northern liberal elites.” And in 2016, at a celebration of his 25 years on the Court sponsored by the conservative Heritage Foundation, Thomas argued that rather than debating issues in the “broken” culture of Washington, “we simply annihilate the person.”
In Thomas’s haunted world, the tormentors weren’t only Anita Hill and the senators. The press was complicit as well. Thomas boasted to clerks that he no longer watched the news. He loathed journalists, whom he described as “universally untrustworthy.” NPR’s Nina Totenberg, who helped to break Hill’s story, earned his singular disgust. In December 1999, he spoke at the annual dinner for the snarky DisHonor Awards given out by the conservative Media Research Center. The evening consisted of “roasting the most outrageously biased liberal reporting of the year.” Thomas was there to send up a TV pundit, Julianne Malveaux, who had urged him to eat “lots of eggs and butter,” so “he dies early, like a lot of black men do of heart disease.” Thomas assured the rah-rah crowd that he was healthy and wished for Malveaux a life filled with her own artery-clogging food. But he couldn’t resist a reference to Totenberg as an example of someone else who did him wrong—a decade before—and whom he would’ve liked to dis-honor in person. “I’ve finally had the opportunity to have my surgeon remove her many stilettos from my back,” he announced gleefully. “I’d like to return them.”
Thomas’s fixation on the past reached its low point in late 2015. Every fall the Court hosts a private dinner to honor the federal judge receiving the Devitt Award, given by the Dwight Opperman Foundation, for “service to justice.” The Devitt has been likened to a Nobel Prize for the American judiciary. Most of the justices, along with about 100 invited guests, attend. That year, Gloria Allred—the omnipresent women’s rights lawyer—came as a friend of Julie Chrystyn Opperman, Dwight’s widow. Allred has been called “a feminist avenging crusader or a deluxe ambulance chaser catching a ride on the latest tabloid scandal.” It depended on whether she was representing you or suing you. Her L.A. law firm’s website keeps a running tab of the multimillions it’s earned in discrimination and sexual harassment lawsuits.
When Thomas saw Allred at the cocktail reception, he panicked. He knew who she was, and his first words to her were, “Are you here to serve me with papers?” The question flummoxed her. She wasn’t involved in any matter involving Thomas or Hill. If she had been, a lawsuit wouldn’t be commenced this way. But Thomas wasn’t being funny. The whole episode was bizarre, unless one appreciated the depth of Thomas’s anger and distrust. Whether that pain fed into his doctrinal obduracy was something only dime-store psychologists could address.
And yet within the Court itself, at the most casual level, he was everybody’s favorite. While the personal was his nemesis in his path to becoming a justice, it worked to his benefit once he became a justice. Anybody you asked at the Court about Thomas mentioned his warmth, kindness and solicitude. He knew the names of the custodians and the elevator operators. You might not see him coming, but his booming belly laugh heralded his approach. If you were particularly lucky, he’d do his Darth Vader impression. When he heard that a close relative of a clerk or an employee was ill, he asked about it—and sometimes showed up, unannounced, at a local hospital to visit. At the end of each term, he took his clerks on a road trip to Gettysburg “to experience what Lincoln said and did”; the pilgrimage, he explained, was meant to juxtapose the template of Lincoln with the “lying” and “jadedness” of present-day D.C. When it came to hiring clerks, he was the least elitist among the justices. While others picked students from Top Ten law schools—or perhaps only Harvard and Yale—Thomas every so often reached down into the plebeian class of LSU, Creighton and the University of Utah.
Many clerks in other chambers cited the time Thomas took them to lunch as their best face time with another justice. The meal could last three hours, as he regaled them with tales not of constitutional law, but of his travels with Ginni in their 40-foot silver-hued RV colossus, complete with kitchen, satellite TV, and big leather seats up in front. Each summer, the couple drove around the country in what they called their “condo on wheels,” in search of “the best of America.” They attended NASCAR events and early-season football games of the Nebraska Cornhuskers. The great open road, Thomas told “60 Minutes,” allowed him to flee “the meanness you see in Washington” and to take the opportunity to be “with regular folks.” When he invited clerks back to his office after lunch to see his album of RV photos, they invariably followed. Clerks from liberal and conservative chambers alike loved the stories and that Thomas shared them. Court outsiders might think of him as Mr. Hyde, but insiders viewed him as Dr. Jekyll.
It wasn’t that clerks hadn’t heard of the “unpleasantness” of Thomas’s confirmation hearings (as one of his colleagues described it). Nor could the other justices have forgotten it. When, in the fall of 2016, a woman came forward on Facebook to accuse Thomas of groping her in 1999, it was impossible for those at the Court to miss the news—or the statement Thomas issued calling the claim “preposterous.” Likewise, in February 2018, when New York magazine ran a cover story, “The Case for Impeaching Clarence Thomas”—based on fresh questions about his testimony at his confirmation hearings—other justices noticed. It simply was that in the small fellowship of the Court, you didn’t bring those matters up, even as the national #MeToo movement took hold.
For the non-Thomas clerks—even those who believed Hill’s version of events—it was less of a problem. You didn’t work for him and wouldn’t, so you could compartmentalize Good Thomas and Bad Thomas. One clerk caustically referred to him as He Who Must Not Be Named—after Lord Voldemort in the Harry Potter novels. The clerks who did work for Thomas didn’t have to deal with any conflicting feelings. Virtually all of Thomas’s clerks shared his ideology and presumably his views about his confirmation. Unlike most justices, who encouraged debate—Roberts, for example, valued curiosity more than rock-ribbed conservativism—Thomas frowned on dissent. “I won’t hire clerks who have profound disagreements with me,” he told a luncheon group early in his tenure. “It’s like trying to train a pig. It wastes your time—and it aggravates the pig.”
For the justices who had to work with Thomas, little good could come of dwelling on the past. Thomas was going to be their colleague regardless and an affable one at that. They were stuck with each other. One justice privately rationalized that Thomas and Hill “were both telling the truth.” In another time, the justices were called “nine scorpions in a bottle”—a reference to the feuds among various FDR-appointed members of the Court. The current justices were keenly aware of the metaphor and wanted no comparisons.
Samuel Alito was the justice who most flew under the radar. He carried none of Thomas’s burdens; he didn’t have a meme or write a bestseller; he wasn’t a swing vote; and he lacked Scalia’s puckish prose. They didn’t even recognize him in the town where he attended law school. In October 2014, Alito was in New Haven, Connecticut, to speak at Yale. He was then one of three alumni on the Court. He and his wife Martha-Ann stopped in for Sunday brunch at au courant Heirloom, right near campus. (Try the Hot Caramel Apple Doughnuts.) Too bad, no tables. The hostess had no idea who he was; he graciously didn’t fill her in; and the couple left. Subsequently apprised that she had turned away a member of the Supreme Court, the hostess explained, “Well, he should have made a reservation. We get very busy for brunch.”
Alito should have been less invisible, given that the Court pivoted definitively to the right with his confirmation in January 2006. His commitment to the conservative cause went back to his service in the Reagan administration, and then to his time as the top federal prosecutor in New Jersey and his nearly 15 years as a federal appellate judge there. Alito replaced O’Connor—a cautious conservative who sided with the liberals on 5-to-4 rulings about abortion, affirmative action, campaign finance, church-state relations, and the execution of minors. His appointment was the most important substitution on the Court since the Thomas-for-Marshall swap in 1991. None of the other swaps producing the Court’s 2017–18 roster—Roberts for William Rehnquist as chief justice, Ginsburg for Byron White, Breyer for Harry Blackmun, Sotomayor for David Souter, Kagan for John Paul Stevens, Kennedy for Lewis Powell—represented as distinct a shift in the Court’s alignment. Decisions that almost certainly would have gone in one direction under O’Connor—like Heller, Citizens United and Shelby County—now went the other way.
An uncharacteristically doleful Breyer took note, in a 2007 dissent he announced from the bench about whether communities could factor in race to preserve integrated schools. Alluding to Alito’s arrival, Breyer declared, “It is not often in the law that so few have so quickly changed so much.”
With Scalia gone, the argument could be made that Alito was the dream justice for conservative ideologues. Roberts had voted twice to uphold the constitutionality of Obamacare; Kennedy had written the decision that made same-sex marriage a constitutional right; and, fairly or otherwise, Thomas’s behavior, on the bench and in the past, marginalized him. Alito had no taste for Scalia’s all-embracing originalist philosophy; at best, Alito’s worldview was as a textualist. But for the right wing, Alito always voted the correct way and without a lot of drama. Except in the case of same-sex marriage, he was altogether fine with the Court’s contempt for the other branches of government. Seven years into Alito’s tenure, an admiring law professor, Michael Stokes Paulsen, concluded that while “there are louder talkers, flashier stylists, wittier wits, more-poisonous pens, nobody on the Court had a more level…swing than Justice Samuel Alito.” Writing in a scholarly religious publication, Paulsen called Alito “the most consistent, solid, successful conservative justice.”
It might not have happened at all, given the tangled process that went into his selection. In the spring of 2005, the Bush administration knew a Court vacancy might be imminent. Chief Justice Rehnquist was fighting thyroid cancer, and one of his daughters had quietly notified White House officials that his prognosis was dire. He had considered leaving in 2003 even before he got sick. That was because he didn’t want to roll the dice on his legacy if Bush lost reelection the following year and ceded to a Democrat the chance to name the next chief. Bush won, but by January 2005 Rehnquist was so ill that there was concern he wouldn’t be able to administer the oath to Bush on Inauguration Day. (If it came to that, Bush indicated his preference for O’Connor as the substitute.)
But it was O’Connor, not Rehnquist, who on July 1, 2005, announced plans to retire. Eighteen days later, Bush initially nominated Roberts to replace her. The president had narrowed his choices to five conservatives: Roberts, Alito, Mike Luttig, J. Harvie Wilkinson III and Joy Clement. All were federal appellate judges: Roberts in D.C.; Alito in New Jersey; Luttig and Wilkinson in Virginia; and Clement in New Orleans. All five had been named to the bench by Republican presidents—Roberts and Clement by Bush himself, Alito and Luttig by Bush’s father, and Wilkinson by Reagan. They were the best evidence of the long incubation cycle for becoming a Court candidate—and of why senators were ill-advised to gloss over lower-court appointments.
While able and amiable, Clement was the lone woman on the list and was there chiefly for that reason. Luttig and Wilkinson, at times rivals on the bench, were regarded as intellectual wunderkinds—both appointed before they turned 40—with vastly different temperaments. Luttig, a protégé of, and clerk for, Scalia, was a firebrand; Wilkinson, who had clerked for the centrist Powell, personified “courtly Southerner.” Alito was the awkward nerd sometimes referred to as “Scalito,” for sharing much of Scalia’s ideology if not his style.
Roberts was then beginning his third year on the D.C. Circuit. Though his luster as an appellate litigator, as well as his service in Republican administrations, might have made him the universal favorite, some in the White House worried he hadn’t written enough in his brief time as a judge to demonstrate his real stripes. As much as Bush sought to avoid a diehard dogmatist—what he derided as “a true believer” intent on blowing up Court precedents—he told his advisers he didn’t want to repeat his father’s error in picking Souter despite a scant record. Alito didn’t have that liability. He’d been on the bench for 15 years and written hundreds of opinions; Luttig and Wilkinson also had comparably abundant judicial experience.
Accompanied by his terriers Barney and Miss Beazley, Bush conducted hourlong interviews with the five finalists and settled on Roberts, whose “quick smile” and “gentle soul” impressed the president, who saw himself as the ultimate “people person.” Media reports of Roberts being a good guy didn’t hurt. He had cultivated reporters. For years, he was known in press circles to be available for an off-the-record conversation, so much so that one admiring Washington regular commented, “John Roberts goes to lunch three times a day.”
Bush and Wilkinson chatted about cross-training, the Founding Fathers, and Wilkinson’s unsuccessful run for Congress at 25. But Wilkinson was older than the others and seemed too attached to lawyerly moderation in the style of Justice Powell. Luttig hoped to partake in an exchange about constitutional creed, which wasn’t what interested Bush. It was a classic instance of a contender misreading the setting—and how that alone could torpedo his prospects. Luttig and Roberts interviewed with the president back to back. The two had been friends since their days in the Reagan administration, when both had helped O’Connor prepare for her confirmation hearings. Roberts and Luttig compared notes later that night, with Luttig still bewildered about Bush’s questions. Alito, notwithstanding his consistent record, didn’t leave much of an impression on the president either way. Clement, though on the bench somewhat longer than Roberts, displayed none of his command.
Vice President Dick Cheney—the administration’s truest true believer—endorsed Luttig, though he acknowledged that nominating him would produce precisely the kind of bare-knuckle battle that Bush wanted no part of. The White House counsel, Harriet Miers, preferred Alito over Roberts, who seemed to her too Souter-ish. The attorney general, Alberto Gonzales—himself in the early running to succeed O’Connor until Bush took him out of consideration—was equivocal; he advised the president that there were good arguments for Roberts, Luttig and Alito. Most of the former Court clerks working at the White House pushed for Roberts, in part because they had seen his sparkle as a litigator. White House chief of staff Andy Card and political adviser Karl Rove also supported Roberts.
Days before Roberts’s confirmation hearings were scheduled to begin in early September, however, Rehnquist died. Bush switched tracks and picked Roberts to be the new chief justice rather than to replace O’Connor. Scalia had told friends he dreamed of becoming chief, and Cheney pushed the president to consider him. But Scalia was too old to be a serious candidate and likely would have produced a confirmation conflagration. With O’Connor’s seat open again, the administration needed another nominee.
The other finalists were still available. But Bush chose someone else. In making personnel appointments, he liked to ask, “Where’s the diversity?” Wilkinson, Alito and Luttig—all white men—didn’t represent it. O’Connor herself let that be known. The Roberts pick “was fabulous,” she told a newspaper in Washington State after an afternoon of fly-fishing. “He’s good in every way—except he’s not a woman.” More important, the president’s wife Laura said publicly and privately that she hoped the next nominee would be a woman. Clement might have been a conventional choice, but Bush had already rejected her after her interview. Another woman, Priscilla Owen—a federal appellate judge in Austin, Texas—was a possibility, but Senate Democrats viewed her as a reactionary. So Bush looked into his own administration and picked the 60-year-old Miers.
She lasted only 24 days. It wasn’t only her mediocre credentials, although they were meager by comparison to other nominees of the prior 35 years. Miers had served capably enough in the White House and before then as a private attorney in Texas—the first woman to run a big law firm in the state and to head the state bar, as well as Bush’s personal lawyer. But that was about it. The bigger problem, though, was that Bush’s base didn’t trust her, despite his assurances that “I know her heart.” The base was interested not in her heart but in how she’d vote. Was she the conservative they demanded or—ironically, given her concerns about Roberts—another Souter type? There was no way to know, because Miers hadn’t been a judge or practiced constitutional law or shown any indication she had much thought about it. In the running list of potential justices dating to the Bush transition in 2000–2001, Miers’s name had never appeared.
Her odds were therefore low at the outset and were further compounded by having a full-time job that left little time to cram for what would be grueling confirmation hearings. With few in the White House encouraging her to continue, and after being savaged by the legal community, Miers withdrew her name. Bush admitted his miscalculation, but he blamed others. “If I had it to do over,” he wrote in his memoirs, “I would not have thrown Harriet to the wolves of Washington.”
The road to Roberts had been smooth. But resolving the second vacancy was now becoming an embarrassment. Against the backdrop of the administration’s highly criticized response to Hurricane Katrina at the end of that summer, the Miers episode made Bush look even more inept. He needed the Court seat filled without further drama.
This time around, Wilkinson was ruled out, mainly due to age and approach, though it didn’t help that he had given an interview, albeit benign, to the New York Times in the interim. Luttig’s stock had continued to fall, despite hints that several conservative justices were hoping he’d be the nominee. Through back channels, White House officials were hearing from other judges on his appeals court that Luttig wasn’t a team player. (This wasn’t Wilkinson operating behind the scenes, but other judges who wanted it known that Luttig, though whip-smart, could be difficult.) And Bush still remembered his interview with Luttig. All this served to boost Alito’s chances.
Alito, then 55, had backers all along. He was skilled, consistent and conservative. The issue was his manner, which never was mistaken for Roberts’s effortless poise. Kindly put, Alito was a little weird, if also at times endearing. When Gonzales had an initial, get-to-know meeting with Alito—even before there were Court vacancies—Alito fidgeted, wriggled, and gave every appearance he wasn’t ready for the spotlight. His suit didn’t quite fit, and his hair looked like it had last been combed the night before. For Gonzales, who had already met with Roberts, the contrast was striking.
The endearing part showed itself a few months later. When the vetting got more formal, an administration official had to locate records from Alito’s time as U.S. attorney for New Jersey. The official reached out to the current officeholder, Chris Christie (who later become governor). Christie wanted to relate office lore. When Alito served as an assistant prosecutor in the late 1970s, he was oblivious to the entreaties of the law librarian—a gregarious woman named Martha-Ann Bomgardner, who was Alito’s behavioral opposite. She passed him a note in the library. They talked novels, Russian history, politics. She gave him her phone number. He didn’t get the hint. “It took him, like, a million years,” in Christie’s telling, to call her. Well, not quite that long. Sam and Martha-Ann were married only seven years later.
Alito’s interviewing style had improved since being vetted for the initial Court vacancy. This time, after meeting with the full administration screening committee (Cheney, Gonzales, Miers, Card and Rove), Alito actually emerged as the best performer, in the view of Cheney and Gonzales—even better than Roberts in terms of actual answers. And in Alito’s interview with the president, he opened up a bit. All it took was Bush mentioning Alito’s beloved Philadelphia Phillies. This conversation, along with the president’s political needs and the consensus on his staff that Alito was, as an adviser put it, “the best pick on the draft board,” led Bush to nominate Alito four days after Miers pulled out.
With Republicans controlling the Senate, the outcome was hardly in doubt. Even so, and despite having been coached to avoid squirms and eye rolls, Alito was a nervous witness at his hearings. He wasn’t good at “speaking D.C.,” as an administration handler said. In addition, Roberts was a tough act to follow. But Democrats overreached, unwittingly turning Alito into a sympathetic character. Deep into his third day of testimony in January 2006, having made no progress in challenging his positions on such matters as abortion and presidential power, the Democrats changed tack. They now pressed Alito on “character issues,” such as his membership long ago in Concerned Alumni of Princeton (CAP), an organization that opposed coeducation, as well as affirmative action in university admissions. He had mentioned the membership when in 1985 he applied, successfully, for a promotion in the Reagan Justice Department, but in the hearings he recalled little about it, making sure to renounce CAP’s racist and sexist statements.
A Republican senator, Lindsey Graham, offered Alito a lifeline. “Are you really a closet bigot?” he rhetorically asked.
“I’m not any kind of bigot—I’m not,” Alito answered.
Martha-Ann was sitting a few feet behind him. She had been the stoic spouse throughout, as any confirmation set piece called for. The bigot question was apparently too much. She sniffled, then sobbed, then exited the committee room. The evening news caught it all. Democrats stopped asking mean questions.
The CAP kerfuffle, fanned by the press, helped make Alito despise journalists almost as much as Thomas did. He was sickened by articles about Thomas and what he thought was bias on the part of many reporters covering the Court. Alito liked to recount how the press in Canada was briefed on new rulings by the country’s highest court. All the reporters were locked in a room, handed the written opinion, and then allowed to ask questions. “I thought it was a great system—until I found out that at the end they unlock the door and let them out,” he deadpanned to an audience at the New-York Historical Society in November 2016.
Alito was confirmed 58–42, after an attempted Democratic filibuster (supported by then-senator Barack Obama) fizzled. The day after, Bush invited the new justice and his family to the White House. Taking Alito aside, the man who won the presidency in 2000 largely by fortuity again acknowledged the element of luck in career advancement. “Sam, you ought to thank Harriet Miers for making this possible,” Bush told him, to which Alito replied, “Mr. President, you’re exactly right.”
Alito’s time at Princeton, from 1968 to 1972—discussed briefly at the hearings in the context of CAP—had been formative. While others—like Sotomayor, four years after him—came away from that tumultuous period with an optimistic view of social progress, Alito had seen division and discord. “It was a time of turmoil at colleges and universities,” Alito recalled in his opening statement to the Judiciary Committee, making clear which side of the culture wars he was on, even in his late teens. “And I saw some very smart people and some very privileged people behaving irresponsibly, and I couldn’t help making a contrast between some of the worst of what I saw on the campus, and the good sense and the decency of the people back in my own community.”
It was also at Princeton that Alito developed his passion for law. He’d come across the work of Alexander Bickel, the dapper Yale law professor who was the foremost constitutional scholar of his time. (Bickel died of cancer at only 49, in 1974, prompting an unusual tribute from the Supreme Court itself.) Though Bickel’s personal politics were progressive, in the 1960s he became the academy’s avatar of judicial self-restraint. He astutely spoke of “the countermajoritarian difficulty” presented by the Court’s power to countermand popular governance in a democratic society. Influenced by his mentor Felix Frankfurter—who described him as nearly a “son-in-law”—Bickel worried about overly assertive justices and believed the Warren Court continually overstepped. In such mostly forgotten books as The Least Dangerous Branch and The Supreme Court and the Idea of Progress, he called on the Court to stay out of many disputes altogether and instead defer to the political branches, no matter what their failings might be.
That was exactly the view Alito had offered in 1985, when he sought to advance in the Reagan administration. “I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate,” he wrote in his job application. More than 20 years later, at his confirmation hearings for the Court, he said Bickel’s writing had provided him with a historical and theoretical basis for “my strong belief in judicial self-restraint.” Bickel was the reason Alito chose to go to law school at Yale after graduating from Princeton. (The two of them never connected there—Bickel died during Alito’s third year.)
Yet for all his professed admiration for Bickel, Alito, once on the Court, paid Bickel little heed. In a September 2015 speech at the George W. Bush presidential library in Texas, Alito mocked Bickelian notions of restraint and pragmatism. His view of stare decisis bordered on the cynical. The Latin phrase actually “means to leave things decided—when it suits our purposes,” Alito told a Federalist Society luncheon. “Stare decisis is like wine. If it’s really new, you don’t want to drink it—it has to age for a while. If it’s really old, it is very valuable, or it has possibly turned to vinegar….It’s not difficult for a judge to make the stare decisis inquiry come out however the judge wants it to come out.” He conveniently left out those sentiments at his hearings a decade earlier. Not once did Alito mention Bickel or his writings in an opinion as a justice.
Only three weeks before the speech in Texas, Alito had traveled to NYU’s Shanghai campus to talk about American democracy and the role of the Court in it. In a private session for guests and students, he implicitly referred to Bickel. “The judiciary is indisputably the least dangerous branch,” he said, but “that does not mean we are not dangerous.” After all, he added, the judiciary wasn’t subject to the “checks” placed on the other branches.
After Trump won the presidency, Alito’s truest colors materialized. In the spring of 2017, only 10 days after Gorsuch joined the Court, Alito appeared at the annual conference of the Third Circuit. That’s the mid-Atlantic federal appeals court, based in Philadelphia, on which he sat before becoming a justice. The event in central Pennsylvania is for judges and lawyers. Most years they talk shop and it’s an anodyne affair, without the presence of C-SPAN. But with hundreds in the audience, including journalists, what’s discussed inside gets out. It was a measure of Alito’s arrogance and tone-deafness that he spoke as he did.
“Having eight [justices] was unusual and awkward,” he explained in his “fireside chat” with the chief judge of the circuit. “That probably required having a lot more discussion of some things, and more compromise and maybe narrower opinions in some cases than we would have issued otherwise.” But now, he said revealingly, “we were back to an odd number.” Who could possibly want “more compromise” and “narrower opinions” of the kind Professor Bickel would have counseled? Now that the conservative camp of the Court had a new member, certainly not Sam Alito. He knew how to count votes. And in Gorsuch, he had what quickly proved to be an ally who had even less interest in “more compromise” and “narrower opinions.”