WASHINGTON (AP) — Supreme Court Justice Samuel Alito says the escalating volume of emergency appeals before the court isn't a good thing, but he adds there's little the court can do to change the trajectory.
The number of petitions asking the justices to intervene quickly has skyrocketed during President Donald Trump's second administration, putting the court at the center of hotly debated issues such as the Republican president's new ballroom construction
and his proposed restrictions on mail ballots in the midterm elections.
The number of emergency applications now rivals the annual tally of cases the justices consider with full briefing and oral arguments, Alito wrote in a new book released Tuesday.
The justice told The Associated Press in a rare interview that the rhetoric about the court from Trump and his administration doesn't sit well with him.
“I personally am not pleased with that," he said. “Everybody in this country has the right to criticize what we do. The substance of their criticism can be quite harsh. If we deserve it, then that’s fine. But rhetoric is a different story."
Alito spoke in connection with his first book, “So Ordered: An Originalist’s View of The Constitution, The Court and Our Country.”
Coming 20 years after he was confirmed to the court after his nomination by President George W. Bush, a Republican, the book is a collection of speeches the 76-year-old has given over the years on religious liberty, his judicial philosophy and constitutional rights.
Alito is perhaps best known for writing the decision that reversed Roe v. Wade and ended abortion as a nationwide right, and he has been one of the most consistent members of the court’s conservative bloc. He’s also voted in favor of some of Trump’s signature policies, even those the rest of the conservative wing has struck down. But he rejects the idea that his decisions are in the “Make America Great Again” camp.
“It’s offensive. I honestly try to decide every single case on the merits, every single application on the merit. And that’s true whether the president is Donald Trump or Joe Biden or Barack Obama or anybody else,” he said.
Trump, for his part, has cheered Alito as “one of the Greatest of All Time” even as he maligned justices whom he appointed as “unpatriotic” and “merely a shell of their original selves." Alito said the harsh rhetoric from across the spectrum doesn’t affect how the justices rule but does play a role in the public’s declining trust in the court.
“The terms used by presidents and by members of their administration, Cabinet officers, other high-ranking officers in describing the Supreme Court and their decisions, and sometimes individual justices, is far different from what we saw 15 years ago," Alito said.
Much of the president’s frustration has come after the court ruled against him on some of his central initiatives, including tariffs and birthright citizenship. Those decisions have been handed down after months of consideration, including oral arguments.
In emergency decisions, by contrast, the president has a much stronger track record of wins.
Typically made in days or weeks, emergency orders are designed to be temporary, lasting only as cases continue to play out in lower courts. But since that process can take years, those decisions can still have important real-world consequences.
Critics, including Alito's liberal-leaning colleague Justice Ketanji Brown Jackson, have complained about the court's recent handling of the emergency docket and outlined proposed steps the justices could take.
Alito, though, said there's little the court can do to stem the tide. Presidents have increasingly used executive orders to enact their policies rather than passing laws through Congress, leading to lawsuits and “robust” decisions from lower-court judges that send a case quickly to the Supreme Court, he said.
“Unless something changes there, and I don’t foresee it right now, I’m afraid this is going to continue,” he said. “An application is something that I think we have to rule on."
Alito also detailed his decision to step away from hearing a climate change case that opened the term. Dozens of similar lawsuits have been filed on whether cities can sue oil and gas companies over damage linked to global warming. Billions of dollars could be at stake, a potentially serious threat to the industry, according to court documents.
Alito had faced calls to recuse himself because he owns stock in oil companies. He told the AP that the stock came from an inheritance his wife received from her father that she doesn’t want to sell.
He initially stayed on the case because he doesn't have stock in the companies involved, he said, adding that the court’s legal office agreed that he could hear the case under its ethics code.
But as he delved deeper into the substance of the case, he decided to step aside.
“This particular decision was a judgment call,” he said. “I gave it very, very serious consideration.”
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