Peter S. Canellos is a prize-winning journalist and the author of Revenge for the Sixties: Sam Alito and the Triumph of the Conservative Legal Movement, which Publishers Weekly called “a razor-sharp” dissection of one of the most controversial justices on the Supreme Court, whose decisions are reshaping the United States.
Mr. Canellos is also the author of The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero. Four years ago, I interviewed him for SCOTUSblog about that book.
Additionally, he is the editor of the bestselling Last Lion: The Fall and Rise of Ted Kennedy. Mr. Canellos has been POLITICO’s executive editor, having led the newsroom during the 2016 presidential campaign, and the editorial page editor of The Boston Globe. Mr. Canellos has also been a Pulitzer Prize finalist and a recipient of the American Society of Newspaper Editors award in 2011 for excellence in editorial writing, along with the 2022 George Polk Award, Robin Toner Award, and News Leaders Association Batten Medal for his writing about the Supreme Court.
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RONALD COLLINS: Welcome back to SCOTUSblog, Peter.
Most judicial biographies are turgid, hagiographic, or adversarial. I found your book engaging, with scholarly insights and impressive sourcing to boot. It offers a fascinating and revealing look into the mind of a man and the origins of a movement. Your treatment of Justice Alito struck me as balanced, replete with both praise and criticism. In some surprising ways, Alito could be proud of several of your portrayals of him, though I suspect that's unlikely, given other accounts in your book.
In a way, and as I see it, your portrayal of Alito is psychological. For example, in a sense, Alito was always wed to Chambersburg in Trenton, New Jersey, the neighborhood of his youth. That world and its values defined him in so many ways. And you stress that the Alito story is “a parable of family, faith, and achievement.” Put it all together for us, the psychology of the man named Sam Alito.
PETER CANELLOS: Justice Alito came from a proud family of Italian American immigrants who carved out a better life while contending with hardships and prejudices. Alito embraces the idea that his parents’ and grandparents’ sacrifices enabled him to live up to his full potential. This trajectory is familiar to many families who came in the great wave of European immigration in the early 20th century, but Alito feels it with special intensity. He grew up believing in America as the land of opportunity, and that prejudice – while deeply unfair – can be overcome with fortitude and discipline. He was a dedicated Catholic churchgoer throughout his suburban upbringing in the 1950s and 1960s. He came of age at the height of the Cold War, when the liberties proclaimed in the Declaration of Independence and outlined in the Constitution were celebrated as antidotes to Nazism and Communism. I think all these factors – an immigrant family’s sense of opportunity, a churchgoer’s religious certitude, and a Cold War allegiance to original conceptions of constitutional liberties – coalesced in his mind into a single vision of an American tradition worth fighting for. Other pioneers of the conservative legal movement were driven by the same factors – immigrant family lore, religion, and the monolithic faith in the founding fathers that grew out of the mid-20th century.
You depict Alito as a child of the 1960s, but an embittered one, especially during his college and law school years. Those years were a shock to his system. As you tell it, his once-mild-mannered mindset shifted. Tell us about that evolution, starting with his years at Princeton and then moving on to his time at Yale Law School when Charles Reich, Robert Bork, and John Hart Ely were all there at the same time.
When Alito arrived at Princeton in 1968, he had every reason to believe his future was secure. He had been a star at Steinert High School in Mercerville, [New Jersey], and then part of a meritocratic wave of public-school kids refreshing the Ivy League. But it was a time of deeply unsettling change. His was the last all-male class to enter Princeton. When women arrived in his sophomore year, dorm-room conversations sometimes veered toward cohabitation, pre-marital sex, and abortion – challenging topics for a conservative teenager. It was also the height of anti-war protests. Alito was part of a relatively small number of students in ROTC, making him in some of his classmates’ eyes an emblem of the university’s connection to the Vietnam War machine. After Nixon invaded Cambodia, protesters bombed Princeton’s ROTC headquarters, and his military training was driven off campus. Faculty joined with striking students to support the postponement of exams, which Alito felt was punishing disciplined students like himself.
When he entered Yale Law School, it was just coming off its own era of turmoil surrounding the Black Panther trial[s] in New Haven. During his first year there, the Supreme Court handed down Roe v. Wade. Two of the leading critics of the decision, Bork and Ely, were prominent Yale professors. They expressed the idea that Roe was unacceptable as a matter of constitutional law – a judicial invention. Even as a law student, Alito was a critic of campus radicals, embodied by his own constitutional law professor Charles Reich. He found the views of Bork and Ely far more persuasive.
Your book skillfully examines the emergence of conservative legal organizing, primarily that of the Federalist Society, a group whose founders were both bright and at odds with the values of their liberal generation. How does the Alito story fit into that? And what explains the commonality of interest between that conservative movement and Alito’s career?
Like the founders of the Federalist Society, Alito came out of college and law school feeling at odds with many people in his own generation. He may have done everything he could to prove himself by the standards of his upbringing, but he wasn’t at the vanguard of social change. This sense of being out of step with his peers was troubling in its own right, but also a potential burden to his career.
The Federalist Society changed that. Here was an alternative power structure built by people who shared his beliefs. The society was a welcoming place, and young conservatives basked in its intellectual energy. When Ed Meese was appointed attorney general, membership in the society became an important career marker, as well. Meese wanted to advance the careers of “proven” conservatives. Alito, who had shied away from political activism, was initially held in suspicion. When Meese’s close aide, Chuck Cooper, wanted Alito to join his Office of Legal Counsel, Meese’s team asked him to write a memo recounting his own journey as a conservative. This paper – in which Alito described youthful disagreements with Warren Court decisions, interest in the ideas of William F. Buckley, and membership in the very conservative Concerned Alumni of Princeton – came back to haunt him during his Supreme Court confirmation.
Nonetheless, he never would have made it to the Supreme Court were it not for the path blazed by the Federalist Society and the conservative legal movement. When George W. Bush’s allies rose up in opposition to his nomination of Harriet Miers, they demanded that Bush choose a proven conservative to replace her. Alito was that person. Along with John Roberts, he was the first product of the judicial pipeline envisioned by Meese and his aides to make it to the Supreme Court.
In 1987, a liberal Senate refused to confirm Bork for a Supreme Court seat, seemingly leaving the conservative legal movement in tatters. But that was hardly the end of the story, since that movement later blossomed as never before. How did that happen?
Bork’s supporters, led by President Reagan, felt strongly – and with some credibility – that Bork’s views had been distorted. He had presented himself as a principled believer in judicial restraint. Ted Kennedy seized on that idea to insist that Bork would remove protections for women seeking abortions, Black people seeking equal rights, targets of police investigations, and so on. Thus, Kennedy turned the confirmation into a political referendum on those issues. Republicans felt that Kennedy’s actions were grossly unfair and inappropriate. But after Bork’s defeat, legal conservatives toned down their expressions of judicial neutrality and more fully embraced the religious right and anti-abortion forces. This was done at an arm’s length from the judicial nominees themselves, but the fusion of a principled legal movement and a passionate anti-abortion movement generated much of the political clout to propel conservatives to today’s position of dominance in the law.
Maryanne Trump Barry, the president’s late sister, figures into your story. How so?
Alito worked very closely with Maryanne Trump Barry near the start of his legal career, when they both handled appeals for the New Jersey U.S. Attorney’s Office. Later, they were judicial colleagues on the U.S. Court of Appeals for the 3rd Circuit. She always spoke highly of Alito. Maryanne was quite different from her younger brother Donald, but her friendship with Alito gave him a connection to the Trump family at a time when few people could envision Donald becoming president.
Charles Cooper, the noted conservative lawyer who once clerked for Chief Justice William Rehnquist, plays a role in the Alito story. Tell us about his role.
Cooper was the man who elevated Alito to one of his most consequential posts, as the number two person in the Office of Legal Counsel. Alito helped Cooper to craft the unitary executive theory, which holds that the president should be able to exercise complete control over executive functions of the government. In practice, it means that new presidents should have the discretion to replace leaders of independent agencies in the middle of their terms. At his confirmation hearing, Alito expressed the view that yes, the president has full executive power, but that the question then becomes one of sketching the boundaries between purely presidential powers and those of other branches.
You note that then-Judge Alito told Sen. Ted Kennedy, albeit in private, that he was “a believer in precedents. People would find I adhere to that. I believe that there is a right to privacy. I think it’s settled as part of the liberty clause of the 14th Amendment and the Fifth Amendment. So, I recognize there is a right to privacy. I’m a believer in precedents. I think on the Roe case that’s about as far as I can go.” Yet the privacy precedent did not save Roe.
In various accounts, you devote some two dozen pages to the Supreme Court’s 2022 anti-abortion decision, Dobbs v. Jackson Women’s Health Organization, authored by Alito for the majority. That opinion was very much in sync with Alito’s moral compass and his jurisprudence. And it was perfectly in tune with the conservative movement waged by the Federalist Society and others. Can you speak to this point?
Alito expressed his belief in a right to privacy to Kennedy and affirmed the idea of unenumerated rights during his confirmation hearing but didn’t assess their boundaries. Certainly, some people would have assumed that supporting a right to privacy meant an endorsement of the basis for the Roe decision. Not so. In multiple cases including Dobbs, Alito has stated that the courts must only acknowledge unenumerated rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The quotes are from Chief Justice Rehnquist’s opinion in [1997’s] Glucksberg v. Washington, a case involving assisted suicide. Framing a right to privacy in this context, of course, rules out abortion and other practices and procedures that weren’t fully embraced by the country at the time of the framing of the Constitution.
Alito's majority opinion in the recent Louisiana gerrymandering case, Louisiana v. Callais, has been described as flouting the Voting Rights Act and weaponizing the equal protection clause in ways hostile to African Americans. However that might be, how does the ideal of racial justice play out in Alito’s mind and jurisprudence?
Alito worries about the extent to which the equal protection clause permits race-based solutions to racial discrimination. He and Chief Justice Roberts clearly feel the government can only provide race-based solutions to racial inequities if there is extensive fact-finding of discriminatory effects. It’s a narrow reading of the law, and perhaps a surprising one from someone who still feels the sting of prejudice against Italian Americans. (He has condemned TV depictions of Italian mobsters as perpetuating ethnic stereotypes, for instance.) But this may also have made him more conscious of the selectivity of some programs to address past discrimination. Put another way, people can find ways to overcome inequities without government assistance.
Alito has championed religious freedom. How would you characterize his views, and how might they one day reshape the constitutional landscape?
This is perhaps his most daring constitutional view, a sense that the First Amendment grant of free exercise of religion can and should be invoked to allow believers to violate certain laws, even if those laws are neutrally applied. This issue frequently arises when faith-based organizations seek to violate non-discrimination rules that protect the LGBTQ community. So far, the rest of the court’s conservatives have not gone as far as Alito in bolstering protections for the free exercise of religion, but he’s made a lot of headway. He clearly believes the free exercise clause is a constitutional counterpoint to anti-discrimination protections. This is a powerful change in the way the Constitution has been interpreted and may be his most lasting legacy.
What more might we expect from Alito going forward? This October, Basic Liberty Books will release his 320-page work titled So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country. Permit me to ask you a last question, a highly speculative one: What do you think will be the mainstays of Alito’s jurisprudence that might stand the test of time, and which ones are most vulnerable to change?
This question is beyond my ability, or anyone’s, to answer, because it will depend on the composition of future courts. One lesson of recent decades is that the country doesn’t change as much as the court – the opposite of what might have been said in earlier eras. It isn’t the country’s position, as measured in polls, that has shifted on abortion rights, affirmative action, voting rights, and the like: it’s the court’s. So if, for example, a series of liberal or moderate presidents follow Donald Trump and appoint justices who are determined to revert to previous understandings of those issues, Alito will look like a combatant in a see-sawing period of political interference on the court. If, however, the current conservative majority holds sway, and the country adjusts to having abortion rights be a political matter, affirmative action a vestige of the past, and expansive gun freedoms as a permanent facet of American life, Alito will be seen as a central figure in the reformation of American law.
