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Samuel Alito: Populist

In 2015, the tenth anniversary of Justice Samuel Alito’s ascension to the Court passed without the level of attention lavished on the same milestone reached that year by Chief Justice John Roberts.  The difference in attention is understandable: the Chief Justiceship has given John Roberts a level of public prominence and influence that his counterparts on the Court cannot match. At the same time, his jurisprudential approach, which mixes an incrementalism that observers have suggested masks a long-term agenda with high-profile compromise votes, make him an irresistible object of study.

But Justice Alito deserves his due. After all, while Chief Justice Roberts replaced a fellow reliable conservative vote (that of Chief Justice William Rehnquist), Justice Alito’s replacement of Justice Sandra Day O’Connor moved the Court decisively to the right on several constitutional issues.  In
addition to the change in results, however, Justice Alito’s rhetoric is also notable and merits consideration. In a number of high-profile cases, Justice Alito has deployed facts and employed reasoning and rhetoric in a remarkably interesting way, one that this Essay labels “populist.”  The impact of this style on law, the Court, and public perceptions of both, constitutes interesting and important topics for any student of the Court, its place in the American political structure, and the nature of the law it pronounces.

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