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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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Naturally, observers have grasped for explanations. One liberal pundit called Alito the Court’s “privacy cop,” albeit one who leaves the beat when corporations or (actual) cops demand otherwise. Another suggested that Alito is the “feelings justice,” even though his empathy “rarely extends to people who are not like him.”

But those speculating as to the roots of Alito’s jurisprudence need look no further than his own words​—​in public documents, at his confirmation hearing, and elsewhere. Justice Alito is uniquely attuned to the space that the Constitution preserves for local communities to defend the vulnerable and to protect traditional values. In these three new opinions, more than any others, he has emerged as the Court’s Burkean justice.

Before looking to the past, we must take a more precise look at the present​—​namely, Justice -Alito’s legal reasoning in the three recent opinions that have drawn such attention. 

In the funeral protest case, Snyder v. Phelps, the legal question before the Court was whether the First Amendment’s right to free speech, as applied against the states, nullifies a person’s ability to sue another for the “intentional infliction of emotional distress.” While the First Amendment is well known to the general public, the latter body of law is not.

“Intentional infliction” is a common-law tort​—​i.e., a judge-made cause of action under state law. If someone’s aggressive conduct causes another to suffer injuries, the victim may be able to sue his aggressor in court, much as he could sue for physical assault. This is not a right to sue over mere run-of-the-mill insults; rather, as the Court explained in Snyder, the plaintiff “must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress.” Nor is “intentional infliction” a recent judicial invention: It was well established more than a half-century ago, with American and English origins decades older.

By the time Snyder v. Phelps reached the Supreme Court, the Westboro protesters disputed neither Snyder’s wounds nor the outrageousness of their own actions. “Instead,” as Justice Alito explained, “they maintained that the First Amendment gave them a license to engage in such conduct.”

And the Supreme Court’s eight-justice majority agreed. It concluded that the Westboro protesters’ speech, though couched in brutish terms and aimed at the private audience attending Matthew Snyder’s funeral, “plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern.’ ” “While these messages”​—​“Semper Fi Fags” and “Fags Doom Nations,” for example​—​“may fall short of refined social or political commentary, the issues they highlight​—​the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy​—​are matters of public import.” 

Having concluded that the Westboro protest was core political speech “conducted peacefully .  .  . at a public place adjacent to a public street,” the Court afforded it the First Amendment’s utmost protection. Finding that the protest fit within none of the narrow exceptions for local regulation of political speech​—​outside a private residence, or outside an abortion clinic​—​the Court concluded that Fred Phelps’s protesters “had the right to be where they were” and to say what they said and, accordingly, that the Maryland jury could not punish them for the harms that their protest inflicted.

Alito emphatically rejected the Court’s analysis: “I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected.” Where the Court characterized the Westboro protest as political speech with injurious effects, Alito described it in precisely opposite terms. The protest was a “brutal attack,” a “vicious verbal assault,” no more worthy of First Amendment protection than a physical assault would be.

To Alito, the tort of intentional infliction of emotional distress is a well-calibrated means by which the local community can defend funeral attendees, the “particularly vulnerable,” from such assaults. “This is a very narrow tort with requirements that ‘are rigorous, and difficult to satisfy.’ ” And because it is a common-law tort developed on a case-by-case basis and enforced by local judges and juries, it allows local people to ascertain and enforce the standard of what is, and is not, “intolerable in a civilized community.” 

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