Alito warns emergency appeals surge is here to stay, slams court rhetoric
US Supreme Court Justice Samuel Alito has said the sharp rise in emergency appeals before the court is not a positive development, but added that there is little the court can do to reverse the trend. In a rare interview with The Associated Press linked to his new book, Alito also said he was unhappy with the rhetoric used by President Donald Trump and his administration about the court.
Alito said the number of emergency applications now nearly matches the annual number of cases the court hears after full briefing and oral arguments. During Trump’s second administration, such petitions have surged, placing the court at the centre of major disputes, including the president’s new ballroom construction and proposed curbs on mail ballots in the midterm elections.
Speaking around the release of his first book, So Ordered: An Originalist's View of The Constitution, The Court and Our Country, Alito said criticism of the court was acceptable, but objected to the tone being used. “I personally am not pleased with that,” he said. “Everybody in this country has the right to criticise 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.” The book, released on Tuesday, comes 20 years after Alito joined the court following his nomination by President George W. Bush, and brings together speeches on religious liberty, judicial philosophy and constitutional rights.
Alito, who wrote the ruling that overturned Roe v. Wade, rejected suggestions that his decisions belong 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 has praised Alito as “one of the Greatest of All Time” while attacking other justices he appointed as “unpatriotic” and “merely a shell of their original selves”. Alito said such language from across the political spectrum does not affect how justices decide cases, but it does contribute to falling public 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,” he said.
On the court’s emergency docket, Alito said the increase is likely to continue. He said presidents are increasingly using executive orders to push policy instead of getting laws passed through Congress, which leads to lawsuits and strong lower-court rulings that quickly reach the Supreme Court. “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.” He made the remarks even as critics, including Justice Ketanji Brown Jackson, have raised concerns about how the court handles emergency matters. Alito also noted that while Trump has lost some major cases after months of review, including on tariffs and birthright citizenship, he has fared better in emergency matters, which are often decided within days or weeks and can still have major real-world effects while lower-court cases continue.
Alito also explained why he stepped aside from hearing a climate change case at the start of the court’s term. The case was part of a wider set of lawsuits over whether cities can sue oil and gas companies over damage linked to global warming, with billions of dollars potentially at stake. Alito said he had been urged to recuse himself because he owns stock in oil companies, which he said came from an inheritance received by his wife from her father and which she does not want to sell. He said he first stayed on the case because he did not own stock in the companies directly involved and the court’s legal office agreed he could hear it under the ethics code. But after examining the matter more closely, he chose to step aside. “This particular decision was a judgment call,” he said. “I gave it very, very serious consideration.” Overall, Alito said the court is facing a growing stream of urgent cases, sharper political criticism and closer scrutiny of its decisions and conduct.
