Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. have long been a jarring study in contrasts. The chief justice is guarded, embodying a cautious and conventional conception of the judicial role. Justice Alito, an eager combatant in the culture wars, tests the limits of that behavior.
Their differing approaches were on display in surreptitiously recorded comments at a Supreme Court gala last week.
Chief Justice Roberts struck a measured tone in response to efforts by a liberal operative to goad him into saying that there was “a role for the court” in “guiding us toward a more moral path.”
The chief justice responded: “Would you want me to be in charge of putting the nation on a more moral path? That’s for people we elect. That’s not for lawyers.”
Justice Alito, who can be awkward and aggrieved, seemed to take the bait, though what he said on the recording was little different from what he says in public speeches to conservative legal groups and at Catholic colleges.
“One side or the other is going to win,” he told the operative, Lauren Windsor, at an annual black-tie event for the Supreme Court Historical Society. “There can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised.”
Those divergent responses are in one sense surprising. The two justices are both products of the conservative legal movement, and they were named to the Supreme Court within months of each other by President George W. Bush.
But over the years, they have come to stand for very different strains of conservatism and judicial temperament, reflected in their opinions as well as in their public statements. While both are firmly on the right, the chief justice tends to favor a cautious incrementalism. Justice Alito has come to embody a more take-no-prisoners attitude that can leave him open to the charge that his agenda is driven by religious and political commitments.
Their paths started differing at their confirmation hearings.
Chief Justice Roberts’s hearings, in 2005, were widely viewed as a triumph. Senator Richard J. Durbin, Democrat of Illinois, said at the time that the chief justice had “retired the trophy” for an outstanding performance by a judicial nominee.
The most memorable moment at Justice Alito’s confirmation hearings, by contrast, involved his wife, Martha-Ann, who has been in the news for flying flags said to support the “Stop the Steal” movement. Mrs. Alito was also recorded at the gala, speaking about, among other things, a flag she intended to fly to counter a Pride flag.
In 2006, at Justice Alito’s hearings, Mrs. Alito left the hearing room in tears when Senator Lindsey Graham, Republican of South Carolina, defended Justice Alito from the charge that his membership in an alumni group was evidence of bigotry. Some found her distress puzzling, as the question was a friendly one, meant to defuse a Democratic attack.
In their early years on the court, the chief justice and Justice Alito were close allies, and their voting records were nearly indistinguishable. They voted together in the majority, for instance, in the 2010 Citizens United campaign finance case.
Days later, President Barack Obama criticized the ruling at the State of the Union address, saying it had “reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”
Six members of the court were present, but only Justice Alito responded, mouthing the words “not true.” He has not attended another State of the Union address. Chief Justice Roberts makes a point of going.
The jurisprudential schism between the two men can be traced to the decisive vote the chief justice cast in 2012 to uphold a central provision of the Affordable Care Act, Mr. Obama’s signature legislative achievement. Justice Alito joined a bitter dissent.
In more recent years, they repeatedly differed as Chief Justice Roberts voted with what was for years the court’s four-member liberal wing in cases concerning abortion, young immigrants known as Dreamers, adding a question on citizenship to the census and restrictions on gatherings at houses of worship early in the coronavirus pandemic. Justice Alito was on the other side.
The balance of power on the court shifted in 2020 with the arrival of Justice Amy Coney Barrett. Five conservative members of the court, including Justice Alito, now outflanked its chief justice. They almost immediately reversed course in striking down limits on attendance at houses of worship.
Then, in 2022, Justice Alito wrote the majority opinion overturning Roe v. Wade, speaking for five justices. Chief Justice Roberts issued a concurring opinion, speaking only for himself, that sketched out an incremental approach that would have upheld Mississippi’s 15-week abortion ban but left the fate of Roe itself for later cases.
The chief justice’s approach may be the product of the job he holds, which was itself the result of a kind of happenstance. Mr. Bush initially nominated him to replace Justice Sandra Day O’Connor, who announced in July 2005 that she planned to retire. Two months later, as the confirmation hearings neared, Chief Justice William H. Rehnquist died.
Mr. Bush then nominated Chief Justice Roberts to his current post. If not for that change, Chief Justice Roberts would have been one of eight associate justices.
But he is instead the head of the federal judicial branch, with broader responsibilities, notably in guarding the independence and authority of the court.
Justice Alito does not seem to have the same concerns. He is instead, as reflected by his comments last week and many statements, willing to stake out positions on public controversies outside of his judicial writings.
In a 2020 speech to the Federalist Society, a conservative legal group, he said that liberals posed a growing threat to religious liberty and free speech.
“For many today, religious liberty is not a cherished freedom,” he said. “It’s often just an excuse for bigotry, and it can’t be tolerated.”
A prime example, Justice Alito said, was opposition to same-sex marriage.
“You can’t say that marriage is a union between one man and one woman,” he said. “Until very recently that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
Last month, Justice Alito gave a commencement address at Franciscan University of Steubenville in Ohio, a Catholic institution.
He received an extended standing ovation when a speaker introducing him noted that he had written the majority opinion in Dobbs v. Jackson Women’s Health Organization, the 2022 decision overturning a constitutional right to an abortion.
In his speech, Justice Alito denounced what he said was a lack of tolerance for religion.
“It’s rough out there,” he said, anticipating his comments at the Supreme Court gala. “And, in fact, I think it is rougher out there right now than it has been for quite some time.”
