Louisiana Solicitor General and former Alito clerk Ben Aguiñaga has a new piece exploding the widespread “media smear” of Justice Samuel Alito as “unhappy,” “aggrieved,” and “wronged.” He doesn’t link to anything — why bring receipts when calling out a supposedly vast media conspiracy? — but he’s presumably responding to Joan Biskupic’s December CNN article describing Alito as an “unhappy” winner. Which was itself a continuation of a 2022 Slate piece by Dahlia Lithwick and Mark Joseph Stern wondering why he’s perpetually furious about everything. So, despite failing to show his work, Aguiñaga’s not wrong about the general perception.
Aguiñaga’s response? Alito eats Campbell’s soup and doesn’t make his clerks work weekends. Case closed, libs!
But before we get to the substance — a word I’m using generously here — it’s worth noting that Aguiñaga is Louisiana’s Solicitor General and has a case before the Supreme Court asking the justices to make it harder for Black voters to elect representatives of their choice. The conservative majority — including Alito — appear ready to kick the Voting Rights Act in the genitals, so it’s not as though he needs a fawning tribute to influence the decision. That said, a guy with matters actively pending before a justice he’s publicly fellating in a Fox News article isn’t an ideal look for the justice system.
Critics of Supreme Court justices frequently resort to unfair caricatures of those justices that, the critics hope, will generate clicks and likes.
“Clicks and likes?” My brother in Christ, what exactly do you think YOU’RE doing? A puff piece in Fox News hinting at a liberal media smear campaign? I will guarantee that drives more numbers than a long form CNN post the week between Christmas and New Year’s. Even if it doesn’t, it chases the only like and click it seeks from its audience of one.
The whole exercise reeks of the Trump playbook, where everyone from CEOs to Nobel laureates heap praise on the boss. Trump’s televised cabinet meetings feel like North Korean media these days. Alito has exhibited terminal Fox News brain for years, so if someone wanted to get a complimentary message to the justice, Fox News would be a logical place to go. Has Alito become as cooked as the 47th President? Interesting question. As Trump might say, “many people are asking.”
Remarkably, Aguiñaga doesn’t even address the actual criticism it sets out to rebut. Reporters on the Supreme Court beat point out that Alito is increasingly snippy at oral argument and snarling in writing. Aguiñaga’s response that Alito is… nice to his clerks.
Some jurists are reputed to be harsh taskmasters. Not Justice Alito. Not only did he lighten our loads at all costs, but he also never raised his voice or directed displeasure toward us. That is not because we were perfect — one time I had to apologize for turning in a memo a day late, but he did not bat an eye. To the contrary, the justice took every opportunity he could to encourage us. I remember one particularly long memo battle that we fought and won. He could have walked off with the victory. But instead, he took time to give me a thoughtful thank you note for my assistance.
Yeesh. Whenever someone tries to launder Clarence Thomas’s reputation, they at least bring up how he knows the name of every janitor on staff. Alito just gets an extended anecdote dump about being cool with the Federalist Society sycophants he hand-picks as his personal assistants. Is the legal profession so broken that “not a monster to work for” is a glowing compliment?
Yes, it is. But I digress.
Being pleasant to people who work directly for him has little bearing on whether he’s consumed with rage at everyone else. There’s nothing mutually exclusive about politely asking a clerk about weekend plans on Friday AND flying insurrectionist flags at your home on Saturday. As another former Alito clerk noted when distancing herself from her former boss over the flag business: you can believe someone is personally honorable while recognizing that their conduct has become indefensible.
Magda Goebbels made excellent strudel, as they say. Which isn’t to say Alito matches up with ol’ Magda, as much as a reminder that anecdotes about private kindnesses don’t make someone an honest broker. In some cases, being nice to the people you interact with directly goes hand in hand with being dismissive or even cruel to the people you don’t. It’s ideal to be nice all the time, but given a choice, I’d rather a justice run their clerks through the Biglaw sweatshop wringer and still believe in the Fourteenth Amendment.
Oh, and Alito is smart too!
The clerkship with Justice Alito was surreal in many expected ways. For example, the justice is incredibly smart. That is readily apparent from any opinion he writes or oral argument in which he grills counsel. So, too, behind the scenes: On more than one occasion, email chatter from him would go quiet, and then a flood of perfectly cited draft opinions would come streaming in. He did not need us.
Which, again, veers from the original point. But sometimes you can learn something when someone keeps redirecting like this. Is Aguiñaga just trying to tell Alito that he really is a beautiful and unique snowflake who shouldn’t retire just because the haters have got him down? It would explain why Aguiñaga hears “Alito is unhappy at work” and replies with “he’s such a brilliant humanitarian!” It’s not about Alito’s mood at work, it’s about girding him to stick it out. Just spitballing here, but maybe stick it out at least long enough for Aguiñaga to build a resume that could fill that seat?
Anyway, this whole kerfuffle is about Alito being pretty clearly annoyed in all the ways detailed in the Biskupic article, and the reason why — for my money — was pegged by Mark Joseph Stern back in 2022:
My theory of the case is essentially that they watched for decades while the court was center-right or moderate, or occasionally handed down liberal rulings, and the country largely accepted those decisions. The legal establishment accepted them. There was not a call generally to expand the court, and the court’s approval ratings remained high. I think Alito and Thomas feel like they’ve now won fair and square, they’re in the driver’s seat, they’re issuing all of the decisions that they think are right, that they believe are certainly no more radical than same-sex marriage or abortion, and suddenly their approval rating is plummeting.
When the Warren Court took unpopular stands, the public more or less thought the justices were taking principled stances. When Alito reverse engineers an assault on half a century of precedent, the public more or less sees it as a cynical power play. The Court’s conservatives thought they’d take down the world the Warren Court built and be greeted as liberators — to borrow from Dick Cheney — and are currently learning the same lesson Cheney did.
Maybe he just needs a vacation. Perhaps some billionaire can offer him a luxury trip where he can sit back, fly some flags, and relax.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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