Justice Alito Acting Like Rookie Lawyer

Sonia Sotomayor, Samuel Alito

Samuel Alito at 2010 State of the Union. Photo by Charles Dharapak/AP, via The Atlantic

It’s one of those things that lawyers learn early on: keep a professional demeanor in court.  You will get your chance to argue. Making faces while your opponent argues exposes a childish temperament.

But someone forgot to teach that to United States Supreme Court Justice Samuel Alito, or he failed to learn the lesson. According to this piece in the Washington Post today by Dana Milbank, Alito has been acting like a middle schooler with his facial expressions when others dare to disagree with him.

I won’t steal all of Milbank’s words, but here are a select few as he describes Alito’s facial expressions when a judge 17 years his senior dares to have a different opinion than he does:

When Justice Ruth Bader Ginsburg read her dissent from the bench, Alito visibly mocked his colleague.

Ginsburg, the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace when Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.

If this happened as Milbank describes, there is frankly no excuse for it.  I’ve seen judges admonish counsel who did this during oral arguments.

But it wasn’t the only time Milbank saw this:

Days earlier, I watched as he demonstrated his disdain for Elena Kagan and Sonia Sotomayor, the two other women on the court. Kagan, the newest justice, prefaced her reading of an opinion in a low-profile case by joking that it was “possibly not” the case the audience had come to hear. The audience responded with laughter, a few justices smiled — and Alito, seated at Kagan’s right elbow, glowered.

And the country as a whole watched this during the 2010 State of the Union when President Obama criticized the court for allowing unfettered corporate spending in political campaigns with its Citizens United decision, with Alito shaking his heads and mouthing a protest. The other justices kept their poker faces intact.

The eye-rolling behavior witnessed yesterday by Milbank, by the way, was also noted by Garrett Epps writing for The Atlantic. He noted about the inexcusable rudeness:

I suspect that the cause of cameras in the Supreme Court suffered a blow on Monday. I am glad the nation did not see first-hand Justice Samuel Alito’s display of rudeness to his senior colleague, Justice Ruth Bader Ginsburg.  Because Alito’s mini-tantrum was silent, it will not be recorded in transcript or audio; but it was clear to all with eyes, and brought gasps from more than one person in the audience.

Once upon a time Alito was a federal prosecutor. Did he roll his eyes and make faces to the jury back then when defense counsel spoke? Or was he able to refrain because, as a prosecutor, he could pick the cases the wanted — ones that, perhaps, had overwhelming evidence in his favor — and was never seriously challenged by an equal?

If I were a judge and saw that type of disrespectful conduct from counsel, I would think in terms of admonishment. Repeat conduct could be subject to sanctions.

Notwithstanding this, I’d love to meet him. With all his facial tells, perhaps I can persuade him to come by for a poker game.

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7 Responses Leave a comment

  • Ron Coleman 2013.6.25 at 12:15 | Quote

    You think Alito should have taken being sandbagged during the State of the Union speech like a man, huh?

    Eric, that assertion so undermines your appearance of objectivity that an otherwise compelling argument.

    Less compelling, however, is your suggestion that female justices are entitled to special deference when opining on “women’s issues.”

    If Alito is indeed mugging, shame on him. You don’t need to load your post up with partisanship to convince us if that.

  • Eric Turkewitz 2013.6.25 at 12:37 | Quote

    You think Alito should have taken being sandbagged during the State of the Union speech like a man, huh?

    You can look at the video and see how the other justices behaved…poker-faced.

    Less compelling, however, is your suggestion that female justices are entitled to special deference when opining on “women’s issues.”

    The issues aren’t relevant. It’s about professionalism. What would happen to you if you made faces in court while your adversary was arguing?

    You don’t need to load your post up with partisanship to convince us if that.

    I offered no opinions on any particular position he took.

  • Ron Coleman 2013.6.25 at 12:45 | Quote

    You’re dead right on the main point. We’ve all seen lawyers reprimanded in court for that… not that the rules that apply to lawyer conduct apply to judge.

    But if you can’t acknowledge, Eric, how partisan your framing of that point is even when I specify it, I’m not going to convince you by arguing it any further.

  • Eric Turkewitz 2013.6.25 at 12:56 | Quote

    But if you can’t acknowledge, Eric, how partisan your framing of that point is even when I specify it, I’m not going to convince you by arguing it any further.

    Two separate witnesses in court that wrote about it and the context within which it arose: Dana Milbank and Garrett Epps.

    I didn’t comment on substance. My point is that, if lawyers acted like that in court (regardless of the issue being argued) they would be flayed.

  • Carolyn Elefant 2013.6.25 at 13:19 | Quote

    Well, now we know one of the reasons that the Supremes still don’t allow cameras in the courtroom. Seems the judges can’t be trusted to behave themselves.

  • Bruce D. 2013.6.25 at 13:35 | Quote

    I think that Alito should be reprimanded for his behavior, if it was anyone else they would be, but because he is a judge he gets a pass, that does not seem right, but that’s life.

  • Vern Dennis 2013.6.26 at 00:55 | Quote

    Truth be told – I roll my eyes too when I read Bader Ginsberg’s opinions.

    Yes, I think Alito should constrain himself, but Bader Ginsberg is so full of it sometimes that I am sure it is hard to resist

Comments are closed.


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