Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. The chief justice was guarded, embodying a cautious and conventional conception of the role of the judiciary. Judge Alito, a passionate fighter in the culture war, tested the limits of that behavior.
A different approach was on display in secretly recorded remarks at a Supreme Court gala last week.
Chief Justice Roberts struck a measured tone in response to efforts by liberal operatives to persuade him that there was a “role for the courts” to “lead us down a more moral path.”
The chief justice replied: “Do you want me to be responsible for putting the nation on a more moral path? That’s for the people we elect. That’s not for lawyers.”
Justice Alito, who can be awkward and aggrieved, apparently took the bait, although what he said on the record is a little different from what he said in public speeches to conservative legal groups and at Catholic colleges.
“One side or the other is going to win,” he told the operator, Lauren Windsor, at an annual black-tie event for the Supreme Court Historical Society. “There is a way of working, a way of living together peacefully, but it’s difficult, you know, because there are fundamental differences that are absolutely irreconcilable.”
The different responses were in one sense surprising. The two judges are both products of the conservative legal movement, and they were named to the Supreme Court within months of each other by President George W. Bush.
But over the years, he has had different types of conservatism and different judicial temperaments, which are reflected in his opinions as well as public statements. While both sides are on the right, the chief justice tends to favor cautious incrementalism. Justice Alito has developed a more take-no-prisoners stance that could open him up to accusations that his agenda is driven by religious and political commitments.
Their paths began to diverge at the confirmation hearing.
Chief Justice Roberts’ trial, in 2005, was considered a victory. Senator Richard J. Durbin, Democrat of Illinois, said at the time that the chief justice had “retired trophies” for outstanding performance by judicial nominees.
The most memorable moment in the confirmation hearing of Justice Alito which, by contrast, involved his wife, Martha-Ann, who has been in the news for flying the flag said in support of the “Stop the Steal” movement. Mrs. Alito was also recorded at the gala, speaking about, among other things, the flag that is going to fly to counter the Pride flag.
In 2006, at Justice Alito’s hearing, Ms. Alito left the courtroom in tears as Senator Lindsey Graham, Republican of South Carolina, defended Justice Alito against accusations that membership in an alumni group was evidence of bigotry. Some found his distress surprising, given that the question was friendly, meant to deflect Democratic attacks.
In his early years on the court, the chief justice and Justice Alito were close allies, and their voting records were almost indistinguishable. They voted together in the majority, for example, in the 2010 Citizens United campaign finance case.
A few days later, President Barack Obama criticized the decision in his State of the Union address, saying that “the law of the century I believe will open the door for special interests, including foreign corporations, to spend without limits in our elections.”
Six members of the court were present, but only Justice Alito responded, saying “that’s not true.” He has yet to attend another State of the Union address. Chief Justice Roberts made a point.
The jurisprudential split between the two can be traced to the vote to determine the chief justice cast in 2012 to uphold the central provision of the Affordable Care Act, Mr. Obama’s signature legislative achievement. Justice Alito joined the dissent.
In recent years, they have repeatedly differed when Chief Justice Roberts sided with what has for years been the liberal wing of the four-member court in a case about abortion, young immigrants known as Dreamers, adding citizenship questions to the census and a ban on gatherings at home. worship at the beginning of the coronavirus pandemic. Justice Alito was on the other side.
The balance of power on the court changed in 2020 with the arrival of Justice Amy Coney Barrett. Five conservative members of the court, including Justice Alito, now overrule the chief justice. They almost immediately reversed the path to striking down the limit on attendance at the house of worship.
Then, in 2022, Justice Alito wrote the majority opinion that overturned Roe v. Wade, speaking for five judges. Chief Justice Roberts issued a concurring opinion, speaking only for himself, that sketched an additional approach that would uphold Mississippi’s 15-week abortion ban but left the fate of Roe itself to a later case.
The chief justice’s approach may be the result of the work he holds, which is also the result of events. Mr. Bush originally nominated her to replace Justice Sandra Day O’Connor, who announced in July 2005 that she was retiring. Two months later, as his confirmation hearings neared, Chief Justice William H. Rehnquist died.
Mr. Bush then nominated Chief Justice Roberts for his current position. In the absence of these changes, Chief Justice Roberts will be one of the eight associate justices.
But he is instead the head of the federal judicial branch, with more responsibilities, especially for maintaining the independence and authority of the judiciary.
Justice Alito doesn’t seem to have the same concerns. He instead, as reflected in last week’s comments and numerous statements, is willing to take a position on public controversy outside the court’s writings.
In a 2020 speech to the Federalist Society, a conservative legal group, he said liberals pose a threat to religious freedom and free speech.
“For many people today, freedom of religion is not a freedom that is respected,” he said. “It is often just an excuse for bigotry, and it cannot be tolerated.”
A prime example, Justice Alito said, is opposition to same-sex marriage.
“You can’t say that marriage is a union between one man and one woman,” he said. “Until now, that’s what the majority of Americans thought. Now it’s considered bigotry.”
Last month, Justice Alito gave the commencement address at Franciscan University of Steubenville in Ohio, a Catholic institution.
He received a full standing ovation when the speaker introduced him noting that he had written the majority opinion in Dobbs v. Jackson Women’s Health Organization, 2022 decision repeals constitutional right to abortion.
In his speech, Justice Alito denounced what he called a lack of tolerance for religion.
“It’s rough out there,” he said, anticipating his comments at the Supreme Court Gala. “And, in fact, I think it’s harder now than it was.”