The Magazine

The Burkean Justice

Samuel Alito’s understanding of community and tradition distinguishes him from his Supreme Court colleagues

Jul 18, 2011, Vol. 16, No. 41 • By ADAM J. WHITE
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In the Supreme Court’s last decade, the most politically heated cases have reliably been the most closely decided. From the deadlocked Bush-Gore election, to partial-birth abortion, to Second Amendment rights, to corporate political expenditures, to Guantánamo, the Court fractured along familiar right-left lines. How strange, then, to see this year’s most emotionally charged case ending not in acrimony but near-unanimity. 

Samuel Alito

When the Supreme Court convened for oral argument in Snyder v. Phelps, judicial formalities only thinly veiled the intense bitterness smoldering among the parties and their supporters. At one table sat counsel for Albert Snyder, father of the late Marine Lance Corporal Matthew Snyder, who was killed in al Anbar Province, Iraq. At the other sat Margie Phelps, counsel for (and daughter of) Fred Phelps, whose notorious Westboro Baptist Church descended upon Snyder’s Maryland funeral, waving signs bearing such startlingly offensive slogans as “Thank God for IEDs,” “God Hates Fags,” and “Thank God for Dead Soldiers.” A federal jury had awarded Snyder nearly $11 million for the “severe depression” and “exacerbated preexisting health conditions” that Phelps’s protest had caused him. 

In the Supreme Court, Phelps argued that the jury’s verdict could not stand because the First Amendment protected Westboro’s right to stage their protest outside the funeral. As the Court heard the case on a gray October morning, Westboro protesters marched outside the courthouse, informing onlookers that God still “Hates Fags” and advising them to “Pray for More Dead Soldiers.”

Amidst that chaos, the Court found not division, but broad agreement. On March 2, 2011, it held that Westboro’s slurs were protected by the First Amendment, and that Snyder would receive no compensation, let alone punitive damages, for the emotional injuries that he had suffered. Chief Justice John Roberts wrote the Court’s opinion, speaking for all of his brethren, conservatives and liberals alike​—​except one. 

Justice Samuel Alito rejected the Court’s analysis and wrote a stirring lone dissent. “The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.” Repeatedly characterizing Westboro’s protest as not merely speech but “verbal assaults” that “brutally attacked” the fallen Snyder and left the father with “wounds that are truly severe and incapable of healing themselves,” Justice Alito concluded that the First Amendment’s text and precedents did not bar Snyder’s lawsuit. “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims. .  .  . I therefore respectfully dissent.”

Snyder v. Phelps would not be the last time that Alito stood nearly alone in a contentious free speech case this term. Just weeks ago, as the Court issued its final decisions of the term, Alito rejected the Court’s broad argument that California could not ban the distribution of violent video games without parental consent. Although he shared the Court’s bottom-line conclusion that the particular statute at issue was unconstitutional, he criticized the majority’s analysis in Brown v. Entertainment Merchants Association as failing to give states and local communities latitude to promote parental control over children’s video-game habits. The states, he urged, should not be foreclosed from passing better-crafted statutes achieving that legitimate end. 

Moreover, Alito’s opinions in those cases followed a solo dissent late in the previous term, in United States v. Stevens, where eight of the nine justices struck down a federal law barring the distribution of disturbing “crush videos” in which, for example, a woman stabs a kitten through the eye with her high heel, all for the gratification of anonymous home audiences.

A justice’s dissenting opinions offer the best opportunity to peer into his judicial philosophy. Years ago, in the foreword to a collection of Justice Oliver Wendell Holmes’s dissents, Dean George Kirchway of Columbia Law School remarked, “It is only at the points where Holmes’ philosophy of life and of the law has clashed sharply with that of the majority of his colleagues that he has found it necessary .  .  . in winged words, to expound and justify that philosophy.” Such is the case here, where Alito sharply disagreed with not just the Court at large, but the three other conservative justices with whom he is generally lumped​—​and by whom he is largely overshadowed in the public eye.

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