Samuel Alito cements his status as linchpin of US Supreme Court’s conservative wing

For years, Samuel Alito has been overshadowed in the public eye by Supreme Court conservative stalwarts such as Clarence Thomas and the late Antonin Scalia, a fellow Italian-American with a similar judicial philosophy to whom Alito was often compared.

But this week, Alito, 72, was propelled to the forefront of the court’s six-member conservative wing after a bombshell draft opinion he authored — revealing his intent to overturn the landmark Roe vs Wade abortion ruling — was obtained and published by Politico.

Even if it is not the court’s final say on the matter, the draft has put the New Jersey native at the centre of one of the Supreme Court’s most high-profile cases in recent history, as divisive as it is consequential.

“[Alito] has flown under the radar . . . he’s [not] a household name among Americans,” said Barbara Perry, Supreme Court and presidency scholar at the University of Virginia. “But he’s now an important and key voice in this conservative supermajority on the court.”

While the frenzy surrounding the highly unusual leak has thrust Alito into the public spotlight, court watchers say he has long been a forceful conservative voice, which has been amplified since former president Donald Trump’s appointment of three right-leaning justices sharply shifted the bench’s ideological balance from liberal to conservative.

While working for the Department of Justice during the Reagan administration, Alito expressed his disagreement with Roe in a 1985 memo. He was later part of a three-judge panel in the Third Circuit Court of Appeals that decided Planned Parenthood vs Casey, which invalidated a measure forcing women who sought abortions to alert their spouses. Alito dissented from that decision, which was later upheld by the Supreme Court in an important affirmation of Roe.

In 2010, four years after he was confirmed to the Supreme Court, Alito caused a stir by appearing to mouth the words “not true” as then-president Barack Obama criticised a Supreme Court ruling on a campaign finance case during his State of the Union speech — a significant if brief breach of etiquette.

A decade later, Alito made more overtly political commentary in a 2020 speech before the Federalist Society, the influential conservative legal group. Covid-19 had “resulted in previously unimaginable restrictions on individual liberty”, he argued, and served as a “constitutional stress test” that highlighted “disturbing trends that were already present before the virus struck”.

He warned religious liberty was “in danger of becoming a second-class right”, citing cases such as the state of Washington notifying Ralphs — a pharmacy chain owned by an anti-abortion Christian family that refused to carry morning-after pills — to supply all contraceptives approved by US regulators or leave the state.

“For many today religious liberty is not a cherished freedom. It’s often just an excuse for bigotry and it can’t be tolerated,” Alito said in his speech. “The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.”

“I view [Alito] as the court’s most consistent conservative culture warrior,” said Neil Siegel, professor at Duke Law School. “He’s also the most voluble and emphatic. Other justices may share his views, but they won’t express them as predictably or as assertively.”

Among the justices, Alito “most reliably gives voice to the anger of traditionalist Americans about . . . the increasingly secular nature of American society”, Siegel said.

Alito’s supporters have praised his intellect and distinguished legal career that led him to the Supreme Court appointment.

“I was incredibly lucky . . . to watch someone with his intellectual calibre and writing abilities tackle some of the toughest legal questions that the country faces,” said Barbara Smith, co-chair of the appellate and Supreme Court group at Bryan Cave Leighton Paisner, who clerked for Alito in the 2015-2016 term.

Maryanne Trump Barry — Donald Trump’s sister, who served with Alito on the Third Circuit and has since retired from the judiciary — described him during his confirmation hearings as “a fair-minded man” who “reveres the rule of law”.

After attending Princeton University and Yale Law School, Alito rose through the ranks of the justice department and was appointed US attorney for the district of New Jersey in 1987, where he was known for tackling organised crime. Three years later, then-president George HW Bush nominated Alito to the Third Circuit appeals court, based in Philadelphia, where he served for 15 years.

Philadelphia was also home to another passion of Alito’s that often features in his speeches and interviews: baseball. “He loves talking to his clerks about his hometown Philadelphia Phillies,” Smith said. “He is quite funny. He’s also incredibly warm and supportive of his law clerks.”

In a 2013 interview with University of Virginia professors, Karl Rove, senior adviser to former president George W Bush, recalled Alito on edge during the interview that would determine whether the White House would consider him for a Supreme Court seat.

“He is quaking. I mean literally, the table is like [shakes table] — I felt for the guy. You could tell he was enormously nervous,” Rove said. “You’re sitting there with five people you don’t know much about, except the vice-president of the United States, and you know that how this goes will have a big thing to do with whether or not you get the thing that would be an honour of a lifetime.”

Now, Alito has the power to shape one of the most polarising issues in the US. If Roe is overturned, about half of US states would be poised to outlaw abortion thanks to statutes that automatically come into force, according to the Center for Reproductive Rights.

Anti-abortion activists have fought to undo Roe for years, and a ruling such as the one Alito drafted would make him a hero to their cause. Among those who are pro-abortion he is being vilified — earlier this week, a flyer pinned to a lamp post by the Supreme Court in Washington read: “Sam Alito wants to kill pregnant women.”

Additional reporting by Kiran Stacey in Washington