Eighteen months into his tenure on the Supreme Court, Justice Samuel Alito Jr. on Tuesday said the Court's deliberative process is good and the Court itself is transparent, but he has one small complaint.
During oral argument, Alito said in a talk at Pepperdine University School of Law in California, his colleagues are so inquisitive that "it's extremely difficult to get a question in."
Alito said his natural tendency would be to ask a question when the lawyer arguing before the Court gets to the subject he is curious about. But because his colleagues are asking so many questions of their own, Alito said, he sometimes has to use "a strategic opportunity to get a word in edgewise," posing his own query whenever he can, whether it changes the subject or not. Alito wryly suggested that the bench may be so garrulous because the current Court contains "the greatest proportion of former law professors" in Supreme Court history.
Alito's remarks were aired live on C-SPAN Tuesday. The format was a conversation with longtime friend and Supreme Court advocate Carter Phillips, managing partner of Sidley Austin's Washington, D.C., office. Also joining in were Pepperdine law dean and former Solicitor General Kenneth Starr and Pepperdine law professor Douglas Kmiec. All four were veterans of the Justice Department under President Ronald Reagan, and the event launched a lecture series named for Reagan's first attorney general, the late William French Smith. Alito is also teaching a constitutional law course at Pepperdine this summer.
During the wide-ranging dialogue, Alito described the Court's internal deliberation process. Before oral argument, he said, the justices rarely discuss a case with one another. The justices' preparation is "almost entirely independent."
As for oral argument, Alito said he wants lawyers to provide him with a road map for deciding the case. "I'm looking for as much help as I can get," he said. Unlike other justices, Alito said, he rarely uses his questioning during oral arguments as a way to telegraph his views to other justices. Using the advocate as a messenger, Alito said, is awkward and inefficient.
Once argument is over and the justices discuss the case, Alito said "the internal deliberation process is good." Chief Justice John Roberts Jr. starts the discussion with a brief explanation of the case and his own vote. Then, in order of seniority, the rest of the justices speak and cast their votes, until they reach Alito, the junior justice. "By the time they get to me, I'm either irrelevant or very important."
Asked the inevitable question about the Court's shrinking docket -- the Court decided 68 cases by signed opinions last term, a modern-day low -- Alito said, "I don't know the answer." But he added, "I can tell you it was not a conscious decision. We look hard for additional cases" that aim to resolve conflicts in lower courts or raise important legal questions. Though complimenting the quality of petitions to the Court, Alito suggested that some exaggerate the depth or importance of conflicts among lower courts on the issue they want the Court to resolve. "There are a lot more alleged conflicts than real conflicts," Alito said.
Phillips gamely countered that in his view, the Court had declined to review a number of cases last term that posed genuine conflicts. He also suggested that in some criminal cases, the Court should not wait for conflicts among the lower courts, because the wait means people are serving extra prison time for convictions that could turn out to be flawed.
Alito shrugged off any suggestion that the Court's sometimes fractured opinions are a sign of a lack of collegiality among the justices. Justices, he said, have a "public responsibility" to state their sincerely held views. "I'm not going to agree with you just because I like you," he said, adding that conversely, he would not disagree with an opinion just because he dislikes the justice writing it.
On another perennial question, whether Court proceedings should be televised, Alito displayed more skepticism than he has before. As a judge on the 3rd U.S. Circuit Court of Appeals, Alito voted in favor of camera access to that court's proceedings.
But on Tuesday, Alito said the Supreme Court was already "one of the most transparent institutions" in the country. Dockets, opinions and oral argument transcripts are available promptly online, and audio of arguments is also available, though on a delayed basis. The burden is now on advocates of camera access, Alito said, to explain why "that extra bit of information," namely the visual image of the justices and the advocates, is so important.
