Afterword
I have consistently spoken of Justice Alito’s “argument” in his Opinion Louisiana v. Callais, and I have used the word not loosely to mean the body of his discourse but narrowly to mean that he takes a position and uses rhetorical devices to argue for that position. I find that method odd in a court opinion; though, not having read thousands of court opinions, I may be wrong. Justice Alito’s Opinion reads to me more like a lawyer’s brief, which is characterized specifically by its argumentative structure because it is disputational advocacy.
Presumably, two opposing advocates present their arguments to the court, arguing against each other. The court’s job is to use that advocacy (the bifurcation of the issues of the case) to piece together a whole that represents the neutrality of a judgment. The opinion, then, states the reasons for the decision.
For example, Justice Potter Steward wrote at the beginning of Mobile v. Bolden, “The city of Mobile, Ala., has since 1911 been governed by a City Commission consisting of three members elected by the voters of the city at large. The question in this case is whether this at-large system of municipal elections violates the rights of Mobile’s Negro voters in contravention of federal statutory or constitutional law.” Justice Steward establishes the Court’s neutrality as the Court’s point of view.
Or, Justice Powell wrote, as the first lines of University of California v. Bakke, “This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admission of a specified number of students from certain minority groups.” Justice Powell also immediately takes the position of neutrality.
But Justice Alito’s first lines in Louisiana v. Callais are “Section 2 of the Voting Rights Act of 1965, …, was designed to enforce the Constitution—not collide with it.” This is a thesis statement not a judicial judgment. Its advocacy contrasts with other Opinions the Justice has authored. Brnovich v. Democratic National Committee begins, “In these cases, we are called upon for the first time to apply § 2 of the Voting Rights Act of 1965 to regulations that govern how ballots are collected and counted.”
In trying to understand Justice Alito’s intent in this Opinion, we need to ask why he chose to write a lawyer’s brief rather than a judge’s opinion. The question is directed not at the text but at the Opinion’s externalities: what it is, its uses, its purposes, and its contexts. One might think, for example, that the argumentative form shows the Justice’s understanding that his decision would be controversial, so that, he needed not a reasoned explanation but a combative defense. However, in the equally rancorous case, Dobbs v. Jackson Women’s Health Organization, where he explained his reversal of abortion law, he began, “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” The answer is insufficient, even if possibly true.
I suggest that Justice Alito’s combative stance derives from a more direct engagement with this case’s central topic, discrimination, than the moral issue of abortion. As a member himself of a minority ethnic group which has had a history of being discriminated against, the abstract issues of discrimination, constitutionality, of government protection of minority races, and of state’s rights (the import of the three Reconstruction amendments) are entangled with his own life history or with how he understands his own experience in America.
Discrimination — racial, ethnic, religious, gender or based on some other distinction for exclusion — is a social and political problem not because it hurts people’s feelings but because it creates systemic powerlessness. Justice Marshall recognized that, for the government, racial discrimination is not about race itself but about power when he called the people harmed by Mobile v. Bolden limiting illegal discrimination to intentional discrimination “the politically powerless” rather than African Americans. Martin Luther King came to the same understanding when he organized the Poor People’s Campaign. This is only to say that the political, social, and economic problems caused by racism are part of the systemically embedded distinctions of class.
Although we like to think of our society as classless, the approbation of elitism in the last decades shows that we are very conscious of class and privilege. Anyone who has risen – as Justice Alito did — from a middle class, Italian American childhood to attend elite universities and eventually achieve the distinction of being Supreme Court Justice, worked hard at it, must recognize the ways in which class structure is affected by belonging to a racial or ethnic or religious group that is (or was) the object of discrimination. Justice Alito cannot not know that he is only the second Italian American in the Supreme Court or that none occupied that eminent position until 1986 when Justice Scalia was installed. Justice Alito was already 36 years old and had represented the United States government before the Supreme Court.
His argumentative stance, then, reflects a personalized issue. Did his successful rise in status reflect a historic reality that demonstrates the uselessness of the Voting Rights Act? Could his success reflect a personal achievement in spite of discrimination? Or, did his success demonstrate personal merit operating on equal footing with everyone else? Whether he articulated these stances to himself is immaterial. He argued the latter, and he wrote to protect that equal footing, which he claims he shares with everyone else. He ignores the protection which the ivied walls of Princeton and Yale gave him and strives to protect that privilege as if it were a right.
I am not claiming to know the Justice’s conscious or unconscious inner life, his spoken or unspoken intentions. Personal as identities are, the social categories of identity (racial, ethnic, religious, gender, etc.) are not individually created but socially given. Our social identities are not a matter of individual choice. I am Chinese because the society, not me, says so. Nevertheless, that identity affects our actions, whether we know it or not, whether we like it or not. Identification releases into our individual actions the culturally derived dynamics of beliefs, ideas, and actions that govern the group’s relations with other groups as they are perceived in society. We are positioned socially as these groups are positioned or as they position themselves in class conflict over power.
When I say that Justice Alito’s argumentative stance demonstrates a personal issue, I mean that his social identity seems to mediate and link his argument to the Opinion’s externalities, to its context as an authoritative document in social, political, and legal power in America. Another way to say this is to understand that the Opinion linguistically performs Justice Alito’s social identity and that identity is prescribed by the history of American discrimination.
As a Catholic Italian American, Justice Alito belongs to two groups that have historically experienced discrimination. Disenfranchisement of Catholics in Colonial America was not uncommon, but the Constitution guaranteed freedom of religion in the new federal government. With the massive immigration in the mid- and late- nineteenth century from Ireland and Italy, Catholicism was caught up in anti-foreign prejudice, and Jim Crow laws in the South (literacy tests, for example) were applied to Italian Americans.
But by the 1950s and 1960s in New Jersey, when Justice Alito grew up, Italian American Catholics and Irish American Catholics were well on their way to being integrated into American society. For Italian Americans, this means that from an ambiguous racial category, they were moving into the “White” majority. I do not mean that there did not remain a strong separatist feeling among Italian Americans. In the Justice’s case, his family and his childhood are deeply connected with the Italian American culture of “The Burg,” Trenton’s celebrated “Little Italy.” See Chambersburg, Trenton, New Jersey – Wikipedia. However, in terms of legal protection, Justice Alito’s heritage most likely neither hindered nor detracted from his social advancement. It seems to me clear that by 1978, the Sons of Italy felt comfortably enough racially to argue for reverse discrimination in the Bakke case. The Justice was in his late twenties then. While, it might be said that Italian Americans as a group had “arrived,” the Justice was just beginning his own ascension.
Justice Alito was a superb student, graduating at the top of his class he had little difficulty entering the nearby elite Princeton University for college, and graduating from Princeton summa cum laude, he had no problem entering the elite Yale Law School, where, as usual, he did outstanding work. He had no need for the Civil Rights Act and the Voting Rights Act or affirmative action, which came into being when he was a teen.
Justice Alito’s argument in Louisiana v. Callais, then, projects a pride in justifiable achievement not only in himself but in the Catholic Italian American rise in American society. He sees his history as American history: we are an egalitarian society that no longer needs Constitutional safeguards to protect against minority discrimination but rather needs them to protect discrimination against the majority. He saw the truth of Justice Roberts’ “zero-sum” logic: “a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.” He wrote to protect that society, to protect the opportunity of class advancement, the garnering of power, in that society.
It is a curiously contradictory argument. That society which is defended is egalitarian, not in need of being made equal, yet that society is hierarchically graded, with distinct differences of class power. Justice Alito’s defense of equity (the Fourteenth Amendment) turns out to be also a defense of elitism. This is the essential conundrum of democracy. Machiavelli said that democracies will always end in plutocracy. I think recognizing this contradiction provides an understanding of why Justice Alito makes an argument rather than an explanation in the Opinion. He resolves the contradiction with the authority of achieved power, fairly gained on a post-discrimination, level playing field. He acts out that myth of upward social mobility in a demonstration of his identity.
Justice Alito wrote not just for himself but for the majority of the Justices. Thus, he lays out their defense. He must know that the rest of the Court shares in the personal experience of having successfully climbed the class hierarchy to reach a pinnacle of power. He cannot also not know that every Justice on this Court belongs to (or was intimately associated with) a racial, ethnic, religious, or gender group that was discriminated against in American history. Thus, the submerged currents – whether discrimination still exists and whether the non-African American majority is harmed by protecting African Americans – reverberate into the personal histories of class ascendance of every Justice as well as of Justice Alito. Eight of the nine Justices attended Yale or Harvard law schools. Seven of the nine Justices attended undergraduate Ivy League schools.
The argument that Justice Alito makes, then, addresses directly his colleagues’ sense of themselves as elite members of their class identities. Their responses are telling. All five men on the Court concurred. Five of the six concurring Justices are practicing Catholics, and the sixth concurring Justice was brought up Catholic. Five of the six concurring Justices are White. The three dissenting Justices were all women: one Jewish, one Latina, and one Black.
To parse these results is difficult because of the complex history of minority power in America. But we might begin by returning to the history of discrimination against Catholics because the present Court is Catholic. Seven of the nine Justices are practicing Catholics or were brought up Catholic (of the non Catholics, one is Jewish and the other Black). But there are significant distinctions in my Catholic grouping (which includes those brought up Catholic) in terms of historical discrimination. The majority are Irish Americans. The others are an Italian American, a Black, and a Hispanic (a “Nuyorican”).
In this Catholic group, only Justices Thomas and Sotomayor experienced poverty and discriminatory disadvantage (not because of religion but because of race or ethnicity), and both have publicly bristled at any suggestion that their success has been due to affirmative action (itself used to distinguish race). Justice Sotomayor has said that she might have had access to elite schools because of affirmative action but denies that that reflects negatively on her capability. Justice Thomas is much more outspoken. His is the most extreme, most astonishingly heroic rags-to-riches story imaginable. He believes that the suggestion of affirmative action makes his hard-won Yale degree worthless.
Justice Alito’s argument — which begins with an attack on Section 2 of the Voting Rights Act, which shifts the discussion of the case from the voting rights amendment, the Fifteenth, to the general issue of individual rights in the equal protection clause of the Fourteenth, his whole reconfiguration of the Court history on civil rights — addresses the personal history and perceptions of his brothers and sisters on the Court and asks for a vote for their self-respect, for an assertion of their pride, a demonstration of their comfort of belonging relative to their social identity group.
The Justices performed their social identities in response. The Irish American Catholics demonstrated that they were as comfortably part of the White majority as the Italian American Catholic Justice by concurring. In a more complex way, Justice Thomas’ concurrence acted out his repudiation of racial categories entirely, as he repudiates affirmative action for demeaning Blacks. In his own concurring opinion in Louisiana v. Callais, Justice Thomas demonstrates his “out of the box” identity by denying that Section 2 has anything to do with redistricting at all. The split between Justice Thomas, concurring, and Justice Jackson, dissenting, acts out two sides of Black identity and, perhaps as well, demonstrates the distance between gender identities. Justice Barrett’s concurring vote constructs her identity as an Irish American Catholic women member of the dominant class, showing that women, too, have made it into the fraternity.
I suggest, then, that six Justices of this elite Court voted to protect the rights of the dominant class as an act that demonstrates their identities as elite individuals in a post-discrimination, classless society. They performed a celebration of individual success through ability, hardwork, and learning, success achieved fairly by self-made people. They enact authority, dominance, and power. Justice Alito interpreted the Constitution to allow that self-image by means of an argument that an abstract, out of context reading of the equal protection clause protects elite power from encroachment by the undeserving masses, us.