Slate
I’m a Seasoned Litigator. Sam Alito’s Recent Questions Have Made Me Cringe.

Sherrilyn Ifill
Thu, December 19, 2024 at 10:00 AM EST
8 min read

I am still enough of an institutionalist that it pains me to hear Supreme Court justices embarrassing themselves on the bench. So as I listened to Supreme Court Justice Samuel Alito engaging with Solicitor General Elizabeth Prelogar during oral argument in the case challenging Tennessee’s ban on the provision of gender-affirming drugs for minors earlier this month, I couldn’t help but cringe.

Shuffling through papers that he suggested were studies from various European countries that urged caution in the provision of puberty blockers to teens, Alito engaged in a “gotcha” line of questioning, insisting that Prelogar—the meticulous and unmatched litigator who has masterfully led the solicitor general’s office under President Joe Biden—had somehow misled the court about the accumulated scientific consensus on the effectiveness of puberty blockers for teens experiencing gender dysmorphia. His derisive tone and relentless questioning were typical for Alito and not what concerned me.

It was instead the contempt that Alito showed for the rules that govern the boundaries of litigation in our system. None of the studies he referenced as the basis of his questions to Prelogar had been part of the record in the case. None had been presented before the judge who tried the case. Justice Alito appeared to have, as the saying goes, “done his own research,” which he was now injecting into the case. And this embarrassed me.

It is not difficult for a civil rights lawyer to criticize the conservative-controlled court’s aggressive and transparent efforts to erase the legacy of the Warren court’s jurisprudence. … What has received too little attention is how this court’s headlong rush toward achieving its ideological aims is undermining the rules that govern our system of litigation in its wake.

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