Alito's Demeanor Inspires Push to Make Court Follow Code

, The National Law Journal

   | 17 Comments

U.S. Supreme Court critics are highlighting Justice Samuel Alito’s behavior on the bench last week—specifically his eye rolls and head shakes—as a prime example of why the nation’s highest court needs some more rules.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to LexisAdvance®.

Continue to LexisAdvance®

Not a LexisAdvance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via LexisAdvance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at customercare@alm.com

What's being said

  • PJ

    Alito does seem to be an odd duck. I watched his confirmation hearings gavel to gavel and was bemused that he, presumably in the strict construction camp, several times used the locution (that he would try his best to) 'make good law'. I expected to see a scarlet A (for Activist judge) appear on his forehead or conservative senators foaming at the mouth (like they did in contemplation of then-nominee Kagen's admiration for Thurgood Marshall), but no one seemed to take note.

  • Gang of Four Watcher

    The United States Supreme Court refuses to permit cameras in to record oral argument, voicing fear that some attorneys may ham it up for the nightly news. But now there is ample reason to let the cameras roll while the justices read their decision. How else to keep judicial pouting to a minimum?

  • Michael1803

    Once again the lefties prove their thin-skinned unwillingness to brook any dissent from their liberal rubric and world-view. Alito merely reacted with honest emotion, visibly (though quietly so) dismayed at Ginsburg's Douglas-like leaps into absurd syllogisms and conclusions. Rather than defend her positions with logic and law (an impossible task in any event), they level personal attacks on Alito and any others bold enough to register objections to through their diaphanous logic. The intellectual, moral and spiritual bankruptcy of their ideas leaves them only with the fascist tactic of the politics of personal destruction.

  • Lawrence Berezin

    Todd,
    Great post.
    You shined a beacon of light on the bad behavior of a Supreme Court justice, who would have been kicked out of his 3rd grade class for his disrespectful behavior.

    Thank you.
    Best,
    Larry

  • Stephen Gillers

    To clarify: In the Daniels case the court held that the conduct described in the article could support summary contempt but adopted to new procedures for its imposition and remanded to the lower court to apply them.

    "Because the proceedings involved
    imprisonment of the attorney, the procedures failed to afford the process due in such circumstances. No discredit is intended or due to the trial judge, who followed prior precedent in proceeding as he did."

  • Judson

    A few men on the current court are behaving less like Supreme Court Justices and more like The Supremes -- that fabulous, glamorous, bodacious singing group -- but with none of their talent. Scalia and Alito seem particularly torn between performing their duties with excellence and decorum -- and just performing. Alas, the celebrity bug strikes the high court -- having already bitten and infected many a corporate executive, politician, doctor, lawyer, educator, and journalist. And, We the People are the worse because we can't even complain to these Supremes because, after a performance, they make themselves lofty and inaccessible under their robes.

  • Roland

    How would the Code be enforced against Supreme Court Justices other than a impeachment and trial in the Senate? I believe all state court judges, including those in each state supreme court or highest court of appeals are bound by a code and could be disciplined for misconduct, and so should US Supreme Court Justices. Many judges would have held a trial lawyer in contempt or given him/her a stern warning for what Alito did.

  • not available

    Professor Gillers has it right - what Justice Alito allegedly did might fall into the category of discourteous (at worst) but unethical? Give me a break! One would think that the two senators from Connecticut and the representative from upstate New York would have better things to do with their time than pursue a childish and time wasting attempt to slap Justice Alito (with who they disagree ideologically).

    Perhaps they'd show some true courage if they focused on the disfunction and lack of ethical behavior in their own legislative ranks before pursuing this side-show that has a zero chance of becoming law.

  • Darren McKinney

    Note to attention-seeking lawmakers: Don't waste precious time on legislation the high court will merely strike down as unconstitutional on Separation of Powers grounds. Beyond impeachment power, the legislative branch has no real authority over the judicial branch, so put a sock in it -- especially you, Senator Blumenthal. For many of us find your absurdly artificial hair-coloring both offensive and rather pathetic, but we wouldn't dream of ginning up legislation to regulate it.

    Note to fellow commenter identified as "Law Student": No need to use the word "like" in the context of your comment. It makes you sound like a semi-literate dope who has no business taking on debt for law school.

  • DC Lawyer

    It is amusing and sad that a person who repeatedly made false claims about his military service in Vietnam to gain political advantage (Sen. Blumenthal) would presume to regulate the deportment of a member of the judiciary. Assuming the accuracy of Mr. Epps' description (a big "if" given Mr. Epps frequently displayed ideological point of view), Justice Alito is guilty of no more than bad manners.
    In a perfect world, members of the judiciary would always display the best of manners, and never be rude or condescending to their colleagues . . . or to the lawyers who appear before them. But, in the real world -- and in my experience -- that does not always happen.

    But, true to the liberal predilection of legislating the smallest aspects of behavior, our worthy Senators think it appropriate for them to legislate good manners on the Supreme Court bench. Although "good manners" in some liberals' eyes apparently includes participation in colloquy with counsel at oral argument . . . given that Justice Thomas is frequently chastised by liberals for being studiously silent during those times. After all, if oral argument is a conversation about the case between members of the Court and counsel representing the parties, isn't it bad manners not to participate in the discussion?

    What next from our worthy solons? A Supreme Court justice brought before a disciplinary committee of Senators because he picked his nose?

  • Law student

    I think that the Supreme Court Justices should be held to a certain standard of behavior because it is like making a mockery of the court when they behave inappropriately and it diminishes and distracts from seriousness of the matters at hand.

  • Judson

    A few men on the current court are behaving less like Supreme Court Justices and more like The Supremes -- that fabulous, glamorous, bodacious singing group -- but with none of their talent. Scalia and Alito seem particularly torn between performing their duties with excellence and decorum -- and just performing. Alas, the celebrity bug strikes the high court -- having already bitten and infected many a corporate executive, politician, doctor, lawyer, educator, and journalist. And, We the People are the worse because we can't even complain to these Supremes because, after a performance, they make themselves lofty and inaccessible under their robes.

  • Publius

    If the logic of an opinion can't withstand the ancillary probing of an eye roll, good luck with the implementation of that opinion out in the real world.

    We all know what this is about -- we must allow no indication of disagreement to the huddled masses, lest they consider what is actually happening, while we convert leftist politically correct dogma to judge-made law.

  • Houston Steve

    Lawyer, there was nothing inappropriate with regard to the Presdient disagreeing with the court. He pointed out, as a the head of a co-equal branch of the government, what he believed the effect of the Court's ruling would be. Mr. Justice Alito was out of line with his juvenile theatrics. And, as it turns out, the President was right and the Court was wrong with regard to the impact of the decision - not that it makes any difference. Even if the President had been wrong and the Court had been right, the criticism was fair and the reaction was unacceptable.

  • JW

    Lawyer, but how do you deal with the recent behavior by Alito, how was that appropriate?

  • Lawyer

    It was inappropriate for Obama to chastise the Supreme Court over Citizens United in his State of the Union message. Alito and the other Supremes should have walked out. Shaking his head was the lesser of the evils.

  • JW

    It seems pretty unprofessional, and a very poor example to set for those that might look up to him. But I guess he believes he is on an island of his own, and not part of a bigger system.

Comments are not moderated. To report offensive comments, click here.

Preparing comment abuse report for Article #1202609264009

Thank you!

This article's comments will be reviewed.