Justice Alito takes aim at recent SCOTUS criticism during Notre Dame lecture

U.S. Supreme Court Justice Samuel Alito pushed back against critics during a stop in South Bend Thursday, defending the high court’s recent handlings of cases on its emergency docket and accusing the media and certain politicians of making the court appear “sinister.”

United States Supreme Court Justice Samuel Alito speaks in the McCartan Courtroom in the Notre Dame Law School. (Photo by Matt Cashore/University of Notre Dame)

Alito shared his perspective during a lecture titled “The Emergency Docket” in Notre Dame Law School’s McCartan Courtroom — roughly two weeks after Justice Clarence Thomas spoke at the university. Prior to Thomas’ appearance, Justice Amy Coney Barrett defended the court’s impartiality while giving a speech in Louisville on Sept. 12.

During the hour-long presentation, Alito supported the court’s use of the emergency docket, which critics have recently dubbed the “shadow docket.” His speech came a day after the Senate Judiciary Committee held a hearing on the matter and a week after a Gallup poll should approval for the court had plummeted to 40% from 49% in July — a new low.

Alito touched on all three controversial docket cases SCOTUS ruled on this summer, including the most recent Texas abortion ban, overturning the eviction moratorium, and blocking an attempt by the Biden administration to overturn a Trump-era immigration policy.

On the abortion case in particular, Alito said the court didn’t overrule Roe v. Wade in its emergency order, and insisted the court never uses emergency rulings as precedent.

“Our decisions in these three emergency matters have been criticized by those that feel we should’ve decided them the other way,” Alito said. “I have no trouble with criticism of those decisions. It’s perfectly fine and productive for there to be a fair public debate about those substantive issues.

“… The truth of the matter is there was nothing new or shadowy about the procedures we followed in those cases,” he continued. “It’s hard to see how we could handle most emergency matters any differently, and despite all the recent criticism of the ‘shadow docket’ we have not seen many serious proposals setting out significantly different procedures we could follow.”

Alito said the current perception of the court is “that a dangerous cabal is deciding important issues in a novel, secretive, improper way in the middle of the night — hidden from public view without waiting for the lower courts to consider the issues, without proper briefing or oral argument and without full opinions.”

He called the idea of the court is making late-night decisions to hide from the public “rank nonsense,” and said that in the past most emergency applications were used on executions. Alito said emergency applications usually come in days or hours before a ruling is required.

In his speech, Alito recognized there has been an increase in the number of emergency orders in recent years due to the COVID-19 pandemic and the number of district court judges who ruled against initiatives by former President Donald Trump.

He outlined 10 different criticisms he’d read about the SCOTUS in recent weeks, using the words “silly” and “annoying” to describe some of them while arguing against each claim.

Alito concluded that the media and some politicians didn’t like the outcomes of the court’s ruling, and “… attempting to disguise a real complaint with a lot of talk about a secretive, sinister shadow docket is unworthy.”

Alito, nominated by President George W. Bush, was sworn-in as the 110th justice of the Supreme Court in 2006. Prior to joining SCOTUS, the New Jersey native served on the 3rd Circuit Court of Appeals for 16 years.

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