April 28, 2017

In folksy talk, Justice Alito shares stories of inner workings of U.S. Supreme Court

Associate Justice Samuel Alito, Jr. walked a large crowd through the back chambers of the U.S. Supreme Court on April 27, in an engaging discussion at the Spring Meeting of the American Bar Association Section of International Law in Washington, D.C.

Ron Cass, left, interviews U.S. Supreme Court Justice Samuel Alito at the Spring Meeting of the ABA Section of International Law on Thursday, April 27

In a conversation with Ron Cass, dean emeritus of Boston University School of Law, Alito offered a behind-the-scenes look of life of the court, as well as sharing insights on some personal dynamics among the justices. A key takeaway was that the justices’ differences were based more on law and less on politics and partisanship.

“There is an awful lot of silliness that is written about the court,” he said about media coverage.

Alito, who joined the court 11 years ago, spun several stories in an entertaining fashion, sharing a tradition or two in the process. He recalled, for instance, his first weekly closed-door, justices-only conference in January 2006. Under the traditions of the court, the most junior justice gets up and answers the door whenever there is a knock.

Alito’s arrival brought a reprieve from that duty for Justice Stephen Breyer, who had served as the most junior justice since 1994, one of the longest stints of any “junior” justice. When the first knock arrived and Alito hesitated for a brief moment, Breyer rose to see who was outside. Quickly, Alito recalled, Chief Justice John Roberts interrupted, saying, “‘Steve sit down. It is not your job anymore.’”

Before his nomination by then President George W. Bush, Alito had served in the Justice Department, as a U.S. attorney, and for 16 years on the U.S. Court of Appeals for the Third Circuit in Philadelphia. He is regarded as a low-key jurist and one of the more conservative on the bench. Pointing to his long government service, Alito quipped that he had “never earned an honest living in the private sector.”

In his conversation with Cass, Alito explored when the high court should overturn precedents, offering there is no easy answer to that question. One critical factor “we consider” is reliance on the previous decision and how ingrained it is in American life. But, he added, it is “very difficult to come up with a nice clean rule” on when to overrule a prior high court decision.

Alito also observed that a justice’s written opinion is often improved when other justices are dissenting. “If you write an opinion and you know you have to answer to a dissent, it makes you more careful,” he said, adding that a unanimous verdict “makes it too easy for you.”

Alito recalled a 2003 majority opinion that he penned, one of his last for the Third Circuit. His opinion backed a disabled elevator operator who had been denied Social Security disability payments after her employer installed new elevators and cut her job.

Recalling that decision, Alito said the law directed the administrative review to check off a list of five factors, and the fourth was whether the individual could still do her last job. Alito said the Third Circuit supported the elevator operator because the job of elevator operator had become obsolete and largely disappeared.

The high court reversed the Third Circuit and sided with the Social Security Administration. Alito observed, that once he got to the Supreme Court building he understood better why: The Supreme Court building was one of the few still maintaining elevators with operators.