This article is part of TPM Cafe, TPM’s home for opinion and news analysis.It was originally published at Balls and Strikes.
On Tuesday, October 6, Justice Samuel Alito released So Ordered, his addition to the Supreme Court’s library of vanity books written by justices who decided that their $306,600 salaries are not enough. Alito’s book is particularly unnecessary because most of it is not even original content, but a collection of adapted speeches he’s given since his confirmation in 2006. As it turns out, a lesser-known perk of being a Supreme Court justice is that you can get paid to publish old talking points thrown together by clerks whose names you forgot long ago.
Much of the coverage of Alito’s book is due to ongoing speculation that he could retire soon, ensuring that a Republican president and a Republican-controlled Senate can nominate and confirm his successor. While promotingSo Ordered, though, Alito has said that he plans to “serve for a certain number of additional years,” and “intends” to “stick around through this term.” On the one hand, I understand why this is a story; on the other, given that Alito is a lifelong Republican with an alarming history of flying January 6-adjacent flags over his homes, if Democrats take the Senate in the 2026 midterms, I will not be shocked if he changes his mind.
The Supreme Court convened on Monday for another exciting round of “how far will they go?” and, as luck would have it, the putative leader of the conservative majority, Justice Samuel Alito, is out on a book tour talking about the philosophy that will guide their decisions.
“So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country” is a collection of essays adapted from speeches he has given since 2007, many with straightforward titles, including “Let Judges Be Judges.” While an associate justice, Alito’s power on the Court shouldn’t be undersold. While all the other conservatives justices — aside from Clarence Thomas — don’t openly identify as originalists, they have shown themselves happy to follow Alito’s lead when it suits their ends. In fact, the so-called Roberts Court, named by tradition after the chief justice, is a misnomer. It’s really the Alito Court, which should send a chill down your spine if you have any concerns about where America is heading.
Alito gave a long interview to CBS News legal correspondent Jan Crawford, addressing a wide range of issues. One wouldn’t call him a charming personality, but he is compelling in his absolute confidence in himself and his ideas. At 76, he seems to be just getting started. He admitted to Crawford that he thinks about retiring, as anyone his age would, but he doesn’t have any intention of doing so at the moment, a fact that must come as a disappointment to both President Donald Trump and congressional Republicans who are struggling to hold on to their majority.
Considering the sad example of the late Justice Ruth Bader Ginsburg, both Alito and Thomas would have done conservatives and Trump a big favor if they had retired during these first two years of Trump domination. Had they done so, they would have been seen as heroes to their fellow right-wing activists.
Trump may think his legacy is in the hideous monuments he’s building to himself, but the Court’s conservative majority will be the lasting mark of his reign. He has already appointed three — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — of the six conservative justices, and if he were able to appoint two more in the vein of Alito and Thomas, but 30 years younger, he would likely seal the nation’s future and benefit his wealthy cronies for generations to come.
Even if the pair had merely hinted they might resign, it would have given the Republicans something to run on in the midterms. Should the Democrats win a majority in the Senate, as they are now increasingly expected to, come January any hopes of appointing a far-right conservative in Alito’s image are dead for at least the next two years. If a vacancy were to happen, presumably the Democrats would invoke the McConnell precedent and keep the seat open until a new president is elected.
“I think I can still make a contribution,” Alito told Crawford. “And it’s hard to give up the opportunity to do something that I think will be good for the Constitution and good for the country as long as I’m able to do it.”
But right now Alito and Thomas are at the height of their power and influence — and they aren’t going anywhere. “I think I can still make a contribution,” Alito told Crawford. “And it’s hard to give up the opportunity to do something that I think will be good for the Constitution and good for the country as long as I’m able to do it.” As Kevin McMahon, a political science professor at Connecticut’s Trinity College, told Reuters, “They have been waiting for a long time to be in the position. So why leave?”
Why leave indeed? Crawford’s analysis of Alito’s power on the Court is that he is now the fulcrum on which its decisions are made. “Alito is especially skilled in bringing together five justices for a majority on some of the Court’s most difficult and contentious issues,” she observes. “The justice often publicly portrayed as unyielding and inflexible is, behind the scenes, the conservative who is uniquely adept at finding common ground on the most divisive issues.”
Alito is certainly having some success with his signature issue, the unitary executive, having been a champion of the right-wing theory since the 1980s, when he worked for Ronald Reagan’s hyper-partisan Attorney General Ed Meese in the Justice Department. As Alito defined it back in 2000, before he was elevated to the high court, the “president has not just some executive powers, but the executive power — the whole thing.” He believes the president has the sole authority over federal agencies and sees presidential power as dominant — well, unless the Supreme Court disagrees and says otherwise.
All this may seem to be in conflict with Alito’s guiding philosophy of originalism, but he explains that away by calling himself a “practical originalist” who believes that the Constitution is a sort of sacred text that must be taken literally as it was understood at the time of its adoption — unless it just doesn’t seem right. Last week, he wrote a Wall Street Journal op-ed headlined “Even Originalists Make Mistakes,” in which he listed legal scholars and practitioners who, in his estimation, aren’t following the one true creed. But Alito admitted that he, too, must sometimes deviate from the path and make a “reasonable judgment call” that may require him to overturn precedents and that “conditions” may “militate against scholarly purity.”
The justice goes to great lengths to deny that he has any partisan interest, but it’s clear throughout the interview and from his other comments over the last few years that he’s highly partisan and influenced by the right-wing hysteria over the “woke” left. Alito expressed grave concern about presidents criticizing the Court for its decisions, saying that Joe Biden was particularly harsh. But when pushed a bit, he admitted that Trump has been harsh too. That false equivalence is so fatuous it’s embarrassing that a Supreme Court justice would have the gall to utter it.
Biden condemned the Court’s decision to overturn Roe v. Wade by calling it a “tragic error” and “an extreme and dangerous path the court is now taking us on.” The 2022 Dobbs v. Jackson decision did, after all, overturn a constitutional right that had been in effect for 50 years, one that numerous conservative justices had told the Senate and country they considered to be settled law. Trump, on the other hand, has said that members of the Court, especially those he appointed, are “very unpatriotic and disloyal to the Constitution,” when they vote against his wishes. But he hasn’t stopped there. They are also, he said, “an embarrassment to their families, if you want to know the truth” and a “disgrace to our nation.” But then Trump loves Alito and says he “wants to make America great again,” so perhaps the justice agrees with him about his brethren. And why not? They are aligned on virtually every issue.
As the Court’s new term begins, Alito is clearly feeling his oats. He wants to have the influence and power to decide the radical cases that are coming before the court as a result of Trump’s unprecedented power grab under the unitary executive theory. The project is his life’s work. So he’s staying.
But that doesn’t mean that Democrats didn’t dodge a bullet when he refused to retire so Trump could name a young replacement. These days it may be hard to imagine anyone worse than Samuel Alito, but just think about who could have been next. How does Justice Todd Blanche or Justice Aileen Cannon sound?
This article is part of TPM Cafe, TPM’s home for opinion and news analysis.It was originally published at Balls and Strikes.
For months, President Donald Trump has been coping with his myriad failures and plummeting approval ratings by trying to make it harder for people to vote his party out of power in the 2026 midterms. To that end, in March, he issued an executive order that would require the U.S. Postal Service to draft a rule that would upend vote-by-mail procedures in dozens of states, and effectively block the agency from processing ballots that do not comply with the rule’s exacting requirements. Trump did not attempt to hide his motives for doing so: Legal restrictions on mail-in voting, he told Republican lawmakers, would “guarantee the midterms” for a party that is otherwise in danger of losing them badly.
Kate Riga has the details here, but a moment we’ve long been anticipating arrived last night: The Supreme Court ruled on Trump’s mail-in voting executive order. It blocked it, at least for now. That likely settles it — at least for this election. “The ruling is a titanic one before the midterms,” Kate writes, “and a major loss for the Trump administration as it seeks to influence the election by attacking absentee voting.”
Justice Brett Kavanaugh suggested he might support the dramatic scheme the Postal Service had cooked up to comply with Trump’s executive order — but not so close to the midterms. “There is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority,” he wrote. But “state and local election officials do not have sufficient time to reasonably implement the rule before the elections.”
There were two justices who wanted the rule to go forward: Sam Alito and Clarence Thomas. In a dissent authored by Alito and joined by Thomas, they argued that the Postal Service had the authority to promulgate and implement the rule, and that that was the end of the story.
It’s hard to overstate the dramatic nature of what the Postal Service was up to; it prompted alarm from election workers and whistleblowers within the USPS itself. The new system featured multiple ways in which not just a single mail ballot but whole reams of ballots could be rejected based on, simply, an error on one. Setting that aside, it created a scenario in which, election experts calculated, ballots would take weeks or even years to be processed. It raises questions about “whether catastrophic failure would be a feature rather than a bug,” lawyers for the Postal Service whistleblower wrote.
Election law scholar Rick Hasen noted that Alito’s dissent made no mention of what the rule would do to the midterms. “The voters make no appearance whatsoever in Justice Alito’s reasoning,” Hasen wrote. “He, like the government, does not dispute that using the rule in 2026 would disenfranchise millions of our most vulnerable people. He doesn’t care. It’s despicable and antidemocratic.””
Whistleblower Details DHS’ ‘Voter Fraud’ Push
Secretary of Homeland Security Markwayne Mullin is seen speaking through the viewfinder of a camera during a press conference at the US Citizenship and Immigration Services (USCIS) NY field office on September 01, 2026 in New York City. (Photo by Michael M. Santiago/Getty Images)
As part of the Department of Homeland Security’s (so far, it seems, not very successful) effort to scrounge up some instances of voter fraud that the administration can tout ahead of the midterms, officers have been scouring states’ voter rolls, and plugging individual voters’ names and other information into states’ public-facing voter websites, which are meant to be used by the voter themselves to check their registration.
According to the whistleblower, officers received little training — just an instructional video, some links to states’ voter registration websites, and a power point presentation.
With that preparation, they are expected to comb through “the personal information of tens or hundreds of thousands of individuals throughout all 50 states, including US citizens,” according to lawyers for the whistleblower. “Officers are supposed to review and determine if the information belongs to an ‘unlawful voter’ and were given a quota of at least five subjects to be reviewed per hour.”
In a letter to DHS Secretary Markwayne Mullin, Senators Chuck Schumer (D-NY) and Alex Padilla (D-CA) demanded answers to a list of questions, including one noting that the slipshod investigation, as described, could lead to baseless criminal investigations. “It equates to approximately 12 minutes per subject – a completely inadequate timeline for investigating and reconciling multiple Alien Registration Numbers mistakenly or inadvertently issued to an individual, increasing the likelihood of error,” the senators wrote. “Individual cases identified by this initiative can then be taken up by HSI for further action, including criminal investigations.”
The whistleblower also expressed concern that by effectively posing as a voter to plug identifying info into these state websites, officers were breaking the law. Training materials asserted that officers were “not personally liable for conducting these searches when done as part of their official duties and properly documented,” suggesting DHS was, in fact, aware of that issue.
Login
