Dahlia Lithwick and Mark Joseph Stern:

Dahlia Lithwick: I think the merits can get lost when we talk about the flags. But there is a substantive problem that we’re starting to pick up on, and that is Justice Alito, in recent weeks, making very real and serious errors in his opinions. They’re actually prompting corrections from sources that he cites, who say, “No, my work reflects the opposite of what you’re claiming.” I’d love for you to unpack that.

Mark Joseph Stern: This happened just last week in the racial gerrymandering case out of South Carolina. Alito cited the Brennan Center, a left-leaning pro-democracy group, to support the proposition that the racial turnout gap is growing—white people are voting at significantly higher rates than racial minorities. And Alito said this fact leads to the conclusion that racial data is actually less useful in drawing maps, so the court should assume that the map-drawers didn’t look at racial data, because it’s not very useful. Even though the map-drawers in this case shifted 30,000 Black residents to a new district with almost surgical precision to make a competitive district less diverse.

The Brennan Center responded that Alito completely misunderstood its work, and in fact got it backward. Bizarrely, he cited an old blog post rather than a more recent, comprehensive analysis of this issue, which would’ve shown why he was wrong. The Brennan Center said that what it actually showed was that South Carolina has better data, on the individual and community level, about racial identity than political affiliation. If Alito had read four more sentences of the blog post he cited, or read the full report that elaborates on this issue, he would have seen that the map-drawers in this case had every incentive to look at racial data! It’s clearer and more useful than data about voters’ political preferences. Alito just butchered the Brennan Center’s analysis and used it to mean the opposite of what it meant.

He received a similar rebuke from a source he cited in his dissent from the CFPB decision, too, right?

Yes. In his dissent asserting that the Consumer Financial Protection Bureau is funded unconstitutionally, Alito cited a book by Georgetown Law professor Josh Chafetz called Congress’s Constitution. Not once, not twice, but eight times. And it’s a very good book! But Alito cited it for the proposition that the Framers would never have wanted to let a federal agency draw its budget the way the CFPB does. And that the Framers and their English forebears would have wanted the judiciary to limit how Congress funds the executive branch.

Chafetz was so irritated by this that he felt moved to tweet that Alito got it dead wrong. Because Chafetz preemptively rebutted the theory that Alito embraced: In the book, he wrote that “text of the Constitution allows for indefinite appropriations in all contexts other than the army,” which is limited to two-year appropriations. That explicitly contradicts Alito’s pseudo-originalist claim. Also, Chafetz wrote about how the appropriations power was, early on, used in a broad and nonspecific way, which Alito deemed unconstitutional. And Chafetz wrote that this power was meant as a check on the executive by the legislative, not a judicially enforceable limit on Congress. Again, that’s the opposite of what Alito asserted. Yet the justice cited Chafetz’s book for support over and over again! [Continue reading…]