Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Opinionpalooza: The Court of King Alito

Date: May 31, 2024
Host: Dahlia Lithwick
Guest: Mark Joseph Stern

Episode Overview

This bonus episode of Amicus, led by Dahlia Lithwick with guest Mark Joseph Stern, offers in-depth analysis of the latest wave of Supreme Court opinions—dubbed “Opinionpalooza”—with a particular focus on Justice Samuel Alito. The hosts discuss growing concerns about Alito's conduct, including errors in his opinions, allegations of personal bias, and his controversial response to flag-related ethics questions. They also consider broader systemic issues, like the lack of error correction on the Supreme Court, and how this affects legal doctrine and public trust.

Key Discussion Points and Insights

1. Justice Alito’s Recent Conduct and Errors (00:03–01:22)

• Lithwick introduces the main theme: Recent problems surrounding Justice Alito, including both his behavior off the bench and serious errors in his authored opinions.
• Alito's “non recusal letter” and defense of his controversial flag-flying behavior signals a sense of “self-crowned King”—placing himself above accountability.
• Lithwick observes:

  “There is a substantive problem that we're starting to pick up on and that it is Justice Alito in recent weeks making very real and very serious errors in his opinion.” (00:33)

2. Alexander v. South Carolina State Conference of the NAACP: Misuse of Sources (01:22–03:17)

• Mark Joseph Stern explains: Justice Alito cited Brennan Center research in the Alexander case (racial gerrymandering in South Carolina) to justify that racial turnout gaps mean racial data is less useful in drawing voting maps.
  • Alito’s argument: Since fewer Black people vote in South Carolina, racial data shouldn't be used to claim racial targeting in redistricting.
• Stern rebuts: Brennan Center publicly responded that Alito misunderstood and mischaracterized their work. In fact, the cited report showed the opposite:

  “If Alito had read maybe four more sentences of the blog post that he cited, or if he had read the full report... he would have seen that [map drawers] had every incentive to look at racial data because it's better and clearer and more consistent and useful than political data in South Carolina.” (02:51)

• Memorable moment: Stern highlights that Alito relied on an outdated blog post, ignoring a newer and more comprehensive analysis that would have directly contradicted his conclusion.

3. Lack of Supreme Court Error Correction (03:17–04:22)

• Lithwick notes the systemic flaw:

  “…the court does not have an error correction mechanism... there's no way once you put something that is false into an opinion, it becomes doctrine. And Alito's become very, very good at this.” (03:27)

• Examples of uncorrected mistakes compounding over time, warping the legal “record.”
• Reference to Justice Kagan’s recent objection that Alito misread her majority opinion as a dissent in a voting rights case.

4. Judicial Fact-Finding by Justice Alito (03:40–04:43)

• Lithwick observes another troubling trend: Alito increasingly substitutes his own "fact-finding," disregarding lower court findings or jury verdicts.
  • Example: In Thordell v. Jones (death penalty/ineffective counsel), Alito disregarded the Ninth Circuit's conclusion in order to impose his own view.
• Stern’s summary:

  “We're just all living in Alito land. And what he did, it was really extraordinary... That should have been the end of it.” (04:43)

Notable Quotes & Memorable Moments

• “We are sharing a preview of that conversation with you right here. But if you want to listen to the episode in full, you need to sign up...”
  — Dahlia Lithwick, setting the stage for the exclusive discussion (00:10)

• “Justice Alito, you completely misunderstood our work. You in fact got it backwards. If you had actually read the report you cited...”
  — Mark Joseph Stern paraphrasing the Brennan Center’s public reaction (02:17)

• “The court does not have an error correction mechanism... there's no way once you put something that is false into an opinion, it becomes doctrine.”
  — Dahlia Lithwick highlighting a fundamental procedural flaw (03:27)

• “We're just all living in Alito land.”
  — Mark Joseph Stern, critiquing Justice Alito's outsized influence and unilateral decision-making (04:43)

Timed Segment Overview

| Timestamp | Segment Description | |-----------|-----------------------------------------------------------------| | 00:03 | Introduction to “Opinionpalooza,” Slate Plus plug, Alito focus | | 00:33 | Alito's recent “real and serious errors” in Supreme Court opinions | | 01:22 | Discussion: Alexander case, racial data, and the Brennan Center flap | | 03:17 | Lack of error correction at the Supreme Court, doctrine concerns | | 03:40 | Trend of Alito doing his own fact finding, Thordell v. Jones | | 04:43 | Stern’s summary of Alito's extraordinary disregard in Thordell case |

Conclusion

This bonus episode sheds critical light on the growing controversy surrounding Justice Alito—both his recent ethical controversies and increasingly problematic judicial conduct. Lithwick and Stern document the risks posed when a Supreme Court justice misuses data, ignores peer correction, and substitutes personal judgment for established facts. They warn that the Court's lack of built-in error correction means Supreme mistakes can become permanent law—offering timely, incisive analysis for anyone concerned with American judicial integrity.

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