As a New Supreme Court Term Begins, Even Some Conservatives Are Running from Samuel Alito

Following the law, hard-right Justice Samuel Alito endorses qualified immunity for public officials. He must if he’s to follow the law. However, the 74-year-old former U.S. Attorney doesn’t like holding rogue public officials accountable if he can help it. He had it so upside-down he lost his conservative colleagues. In a case from the end of last term that got far less attention than it deserved, Gonzalez v. Trevino, Alito’s concurring opinion was a one-off from the court majority, illustrating how the justice has in his 19 years on the high court moved into an orbit more distant than ever from the sensible center.

The plaintiff in the case, Sylvia Gonzalez, a 72-year-old grandmother and former councilwoman in Castle Hills, a small enclave city near San Antonio, brought a civil rights claim against the mayor and others after she was arrested for mishandling a public document at a city council meeting. Gonzales said the arrest was retaliation for speaking out against the city manager, one of the mayor’s cronies. Political retaliation is dangerous business, and Gonzales noted that no one else had ever been arrested in a comparable situation. Indeed, the arrest affidavit, filed about a month later, left no doubt the arrest was retaliatory. It read: “[f]rom her very first [council] meeting in May of 2019 [Gonzalez] … has been openly antagonistic to the city manager…wanting desperately to get him fired.” Gonzalez spent an evening in jail. A month later, the district attorney dropped all charges.

Perhaps not surprisingly, the purloined document was a petition gathered by Gonzalez to oust the city manager. The settled law is that a plaintiff bringing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest. Gonzalez conceded there was probable cause, so why not close the case? She relied on a narrow exception to the rule. The existence of probable cause does not defeat the claim if she produces objective evidence that she was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.

A divided 5th Circuit Court of Appeals, known for its conservative rulings, rejected Gonzalez’s claim because she failed to demonstrate that the police had declined to make arrests in similar situations.

Gonzalez did allege that she had reviewed relevant misdemeanor and felony data and that her review had found that the Texas anti-tampering statute had never been used “to criminally charge someone for trying to steal a nonbinding or expressive document.”

This should have been sufficient. The Supreme Court agreed that the 5th Circuit was too tough on Gonzalez. Alito was assigned the opinion.

But as he began writing, he salivated to decide the final outcome. So, his conservative colleagues jumped ship. The bi-partisan majority agreed to remand the case. They said in a five-page opinion that the lower court had applied an “overly cramped view” of when people may sue for First Amendment retaliation claims. The Court’s opinion did not suggest the lawsuit’s outcome, although Alito seemed determined to do just that.

In what became a 16-page concurring opinion, Alito agreed that the Circuit had taken “an unduly narrow view,” but his opinion went further, appearing to decide the facts in the case. Gonzalez had launched a campaign to oust the city manager. She visited Castle Hills residents, requesting their signatures and support as part of her efforts. By some accounts, her efforts were aggressive. One citizen of Castle Hills alleged that Gonzalez solicited her signature “under false pretenses, specifically by misleading her about the nature of the petitions and by lying about the manager’s performance in office.” Alito didn’t like that.

Shortly before the meeting began, while the mayor was conversing with two constituents, Gonzalez approached the dais, took the petition from his pile of documents, and put it in hers. An attentive police officer approached her and asked if she had taken the petition. After Gonzalez denied the accusation, it was suggested she check her binder.

What happened was captured by surveillance videos. Gonzalez slowly flipped through her binder. However, before she reached the binder-clipped stack, she stopped and once again denied possessing the petition. The authorities pointed to the visible black binder clip. Gonzalez said she thought it was an extra copy.

Alito concluded that Gonzalez had likely violated Texas’s anti-tampering statute and was evasive in denying her guilt.

This behavior, on Alito’s part, is rich.

The justice harbors, it seems, a hypocritical hate-on for people who give false and evasive answers when confronted with their misconduct. He should talk. In July 2008, billionaire Paul Singer flew Alito on his private jet for a luxury Alaskan fishing vacation. After the trip, Singer’s hedge fund brought at least 10 cases to the Supreme Court involving high-stakes business disputes. Alito never reported the gift and never recused himself from Singer-related matters. And what was Alito’s answer? In an unusual letter to the Wall Street Journal, published June 20, 2023, Alito professed only a casual relationship with Singer (which makes it worse) and gave the inherently incredible explanation that he had not been “aware” of Singer’s connection to the entities involved in the cases, and even had he been so aware, “recusal would not have been required or appropriate.” Believe that, and I will sell you a bridge in Brooklyn.

One of Singer’s cases before the court involved the validity of billions in Argentine bonds he held. It was one of the highest-profile cases in American financial history. In 2014, Alito voted with the majority, handing Singer a major legal victory.

Then, there is the matter of the upside-down American flag, an international distress signal, gallantly streaming in front of Alito’s Virginia home. In January 2021, armed insurrectionists carried the inverted flag into the Capitol on January 6. Alito flew the insurrectionists’ flag outside his Virginia home just as the Supreme Court decided an election case. His explanation was riddled with prevarication and evasion. He blamed it all on his wife of 29 years and said the flag was a response to a spat with neighbors. The dispute involved a neighbor who posted a sign saying “F**k Trump” near a school bus stop, a detail Alito pointed to, implying children might have been traumatized by the sign. However, there was no student transportation at the time due to the pandemic. It turns out that the inverted flag waved over the Alito establishment weeks before the dispute with the neighbors erupted. The Alitos also flew an “appeal to Heaven” pro-Trump flag outside his New Jersey vacation home, with no anti-Trump cussing to blame. Alito’s explanations were as palpably false and evasive as Sylvia Gonzalez’s.

Alito is 74 and has served 18 years on the high court. No wonder President Joe Biden proposed term limits for Supreme Court justices.

Ironically, when Alito was the Ronald Reagan-appointed U.S. Attorney in New Jersey, he had a good record of prosecuting public corruption cases and the usual organized crime that landed in its Newark offices. The New York Times later quoted persons working for U.S. Attorney Alito’s saying the office was noteworthy for its “lack of a political agenda and modesty setting the tone.” As a new Supreme Court term begins, who would possibly say that now about Justice Alito?

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