Opinionpalooza: The Court of King Alito

Summary

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

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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.

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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)

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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)

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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 |

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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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For the full discussion and deeper dive into these rulings, subscribe via Slate Plus.

Transcript

[A]

Hi, this is Dalia Lithwick and we are sharing an opinionpalooza bonus episode with our Slate plus listeners. Following Thursday's clutch of opinions and Justice Samuel Alito's non recusal letter and totally rational and ethical and unbiased defense of the rational and ethical and unbiased decision to fly flags over his various homes. 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 for our membership program at slate plus. Go to slate.com amicusplus to access all of our extra episodes. Here is Mark Joseph Stern and me on the monarchic Supreme Court's self crowned King. So 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. Right. That are actually prompting and you've been tweeting about this corrections from sources that he cites to say no, actually my work reflects the opposite of what you're saying and I'd love for you to just unpack that Mark, because it is more of the I'll tell you what truth is.

[B]

Yeah. So this happened most recently in the Alexander case about racial gerrymandering in South Carolina where she, Justice Alito cited the Brennan center to support the proposition that the racial turnout gap is growing, that racial minorities are voting less, white voters are participating more. And Alito said, well that leads to the conclusion that racial data is actually less useful in drawing maps. So we should just assume that the map drawers in this case, despite targeting with surgical precision 30,000 black residents and shifting them to a different to prevent them from flipping the one they were in to Democrats, he said we should just assume that everything was above board and innocent because this racial data, look guys, it's useless. Not enough black people vote for it to be of any use. The Brennan center responded and said, oh my God, Justice Alito, you completely misunderstood our work. You in fact got it backwards. If you had actually read the report you cited. And by the way, he cited a blog post that was several years old instead of a much more recent and comprehensive and lengthy analysis of all of issues that would have made it even clearer why he was wrong. Brennan center said what we actually showed in that report is that South Carolina does not have particularly good data on the individual and community level about political affiliation, but it does have really good data on the individual and community level about racial identity. And so if Alito had read maybe four more sentences of the blog post that he cited, or if he had read the full report that elaborates on these issues, he would have seen that Snap Jars in this case 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.

[A]

Yeah, and this, I think, dovetails with stuff we've talked about so much over the years, which is the court does not have an error correction mechanism. You know, the court doesn't have a roundup at the end of the week of like, this is all the stuff that we got wrong in our opinions the way Slate does. 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. And don't forget, this is Justice Kagan last week as well in the voting case, saying, you are reading my majority opinion to be a dissent, like you're not understanding what I'm saying. And there's no corrective. It's just choose your own ending. There's another phenomenon. It's related, but it's quite different, which is that Alito seems more and more to be substituting his own fact finding in cases, including on Thursday, where he's like, yeah, it doesn't matter what the facts are, what was determined by a judge or a jury. Here's some thoughts that I have about the real facts.

[B]

Yeah, so this is A case, Thordell vs. Jones, about a band condemned to death on the basis of what seems to be ineffective assistance of counsel. Doesn't look like his counsel presented all of the potential mitigating evidence. The Ninth Circuit found ineffective assistance of counsel. The Supreme Court reversed an opinion by Alito.

[A]

Who else?

[B]

We're just all living in Alito land. And what he did, it was really extraordinary. So he said, we disagree with the Ninth Circuit that he had ineffective assistance of counsel. Right. That should have been the end of it.

[A]

During Opinion Palooza. Slate plus members don't have to wait for our opinions on the opinions with access to emergency episodes whenever the biggest decisions come down. If you are not a subscriber, go to slate.com amicus+ to join, or if you're listening in Apple Podcasts, click Try Free at the top of our show page. We're back on Saturday with this week's episode of Amicus, and we'll talk to you then.