Justice Alito Needs to Stop Demagogic Post-Roe Comments
On July 22, Justice Samuel Alito delivered a speech at a religious liberty event in Rome in which he mocked foreign leaders who had criticized the Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health Organization. At one point, Alito joked that British Prime Minister Boris Johnson had been voted out of leadership because he had dared to criticize the Supreme Court’s decision. He also criticized Prince Harry and called out “foreign leaders who felt perfectly fine commenting on American law.”
Like his equally controversial November 2020 address to the Federalist Society, in which he declared his position on a then-pending Supreme Court case, Alito’s Rome speech was met with a barrage of criticisms pointing out the impropriety of judges making divisive public remarks. Criticisms of Alito also echoed The Washington Post’s censure of the late Justice Ruth Bader Ginsburg in 2016 for publicly chastising then-candidate Donald Trump.
Though none of these critics explicitly used the term, what they were intuiting was that Justice Alito was engaging in judicial demagoguery – that his provocative rhetoric was ill-suited for the judicial office he holds. On what is this intuition based?
Most of us associate demagoguery with ancient popular assemblies and the modern campaign trail, not with courts and judges. Demagogues, we tend to assume, are ambitious individuals eager to use their rhetorical gifts to stir up crowds and manipulate the passions of the public to enhance their own authority. Their provocative public utterances are conceived of as direct threats to the state itself.
But in my forthcoming book, “Demagogues in American Politics,” I argue that the U.S. Constitution requires us to think about demagoguery in a completely different way. What does demagoguery mean in a country where free speech is a constitutional right and political authority is largely exercised in highly structured, formalized institutions like Congress and the Supreme Court?
In the United States, the term demagoguery makes more sense when applied to those in formal positions of authority, like judges and elected officials. This is because those who hold power in a free country are obligated not only to execute their offices in publicly responsible ways but to explain the reasons for their conduct. A society of free and equal citizens must understand the merits of their leaders’ actions to judge their fitness to hold public office.
But the Constitution also creates offices that are designed to perform different functions. And these divergent institutional responsibilities imply disparate rhetorical responsibilities. Different kinds of speech are more or less appropriate depending on the type of gathering – speech characteristic of a sporting event would be inappropriate at, say, a court proceeding or a funeral – because these settings exist to realize different social ends.
What does this mean in practice? It’s obvious, for example, that a judge should refrain from indulging in the kinds of rhetorical excesses that are commonplace for a member of Congress. By definition, legislators are partisan advocates whose job requires them to seek goods for their constituents. This fact is reflected in the mode of their appointment: they are elected, and their position depends on their constituents’ approval.
By contrast, unelected judges should avoid impassioned or divisive rhetoric, because the successful execution of their office does not require it. Federal judges have lifetime appointments and therefore don’t need to deploy the kind of rhetoric that is necessary for winning elections. Additionally, unlike legislators who need to assemble majorities to pass legislation, justices don’t necessarily have to persuade their colleagues on the court in order to succeed at their job. They are institutionally empowered to rule in accord with their own best understanding of the law, regardless of whether they are in the majority or minority.
Viewed from this vantage point, Justice Alito’s remarks on July 22 were entirely inappropriate. They were unnecessary for the successful execution of his judicial office. They signaled his partisan commitments and his inability to consider future constitutional questions in an impartial manner. Most troubling of all, his off-the-cuff punditry fortified the growing public suspicion that the Supreme Court does not deserve its privileged position in the American polity, because its members are mere partisans who take their privileged position for granted.
If they haven’t already, Justice Alito’s colleagues should encourage him to exercise the rhetorical discretion that befits his office.
Charles U. Zug is an Assistant Professor of Political Science at the University of Colorado Colorado Springs and a fellow at the Jack Miller Center. His first book, “Demagogues in American Politics,” is forthcoming from Oxford University Press.
