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Justice Alito Reminds Us How to Argue

In a recent Supreme Court decision, he took aim at our political culture's endless ad hominem attacks. We should listen.

Associate Justice Samuel Alito participates in the swearing-in ceremony for Defense Secreaty Mark Esper in the Oval Office at the White House in Washington, DC, on July 23, 2019. (NICHOLAS KAMM/AFP via Getty Images)

Last month, the United States Supreme Court, in Ramos v. Louisiana, held that the Sixth Amendment requires a unanimous jury verdict to convict a defendant of committing a serious offense in state court. The decision rectified a lingering injustice in two outlier states—Louisiana and Oregon still allowed non-unanimous juries’ verdicts to convict defendants. It also provided a window into how the current Court’s composition might decide questions of constitutional interpretation.

The majority decision was held together by a vote of six to three, with four justices writing separately. It is the kind of fractured decision that gets lawyers, academics, and court watchers frisky, ready to opine on the rigors of Justice Gorsuch’s history or whether Justice Kavanaugh should have required grievous and egregious error as a necessary condition to overturning precedent. I leave it to others to do that. I write to address the brief lesson in civic virtue that Justice Alito delivered in his dissenting opinion.

We live in polarized times. There is a deficit of trust in institutions, elites, and our fellow citizens. One 2019 survey found that more than half of self-identified Democrats and Republicans believe the other side holds “extreme views.” This moment has enabled the loud, ill-informed, and disrespectful to ascend in public life. (What else can explain an Alexandria Ocasio-Cortez, an Ilhan Omar, or a Steve King?) Public debate has degraded in proportion to the character deformities of those leading it. First-order matters of honest argumentation have been replaced with name-calling and the impugning of motives.

In Ramos, Justice Alito took judicial notice: “Too much public discourse today is sullied by ad hominem rhetoric,” he wrote, “that is, attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the arguments proponents. The majority regrettably succumbs to this trend.”

Justice Alito is referring to the logical fallacy of ad hominem argument. The literal translation of ad hominem is “argument to the man.” When one advances an argument, it’s supposed to be judged on the merits of its claim; it makes no difference whether Pope Francis argues it or Vladimir Putin does. (A claim, however, that Putin is “a murderer and a thug,” as the late John McCain said, is ad hominem but not an ad hominem fallacy because Putin’s person is the issue—and, of course, he is a murderer and a thug.) The ad hominem is at once divisive and politically expedient because it confuses rather than clarifies questions of public import with sophist attacks on personalities.

For instance, if President Trump announced that we must reorient our policy towards containing China because of its duplicity in managing the spread of the Wuhan virus, its militarization of the South China Sea, its massive theft of intellectual properties, and its stealth infiltration of international organizations, a critic would commit a fallacious ad hominem argument by responding that this is bad policy because Trump is a bad person—arguing to the man rather than the merits of containment. One need only sit through CNN’s coverage of the president’s daily pandemic press briefings to see some very unsubtle uses of ad hominem.

In disagreeing with the majority’s holding, Justice Alito rejected the Court’s interpretative paradigm that suggests otherwise neutral laws should be invalidated because of shameful historical origins. “If Louisiana and Oregon originally adopted their laws allowing non-unanimous verdicts for [racist] reasons, that is deplorable,” he wrote, “but what does that have to do with the broad constitutional question before us? The answer is: nothing.”

Justice Alito’s concern is that the mischief that ad hominem has caused in our national politics will find its way to the Supreme Court on a more permanent basis: “Some year ago the British Parliament enacted a law allowing non-unanimous verdicts. Was Parliament under the sway of the Klan? …So all the talk about the Klan, etc., is entirely out of place.” Instead, he counseled, the High Court “should set an example of rational and civil discourse instead of contributing to the worst current trends.”

Justice Alito’s succinct discourse makes the case for a return to respectful and reasoned argument, dispensing with insult, accusation, and interrogation of motives. Republican government requires honest and even passionate disagreement but is undermined by self-righteous invective that inflames rather than informs. In Federalist No. 55, James Madison alluded to the civic virtues—the “other qualities” of self-restraint, prudence, and goodwill—that citizens needed to possess to ensure the integrity of American self-government:

The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.

In our political disagreements, not everyone can be expected to exercise the sage wisdom of James Madison. But we all can and should do better than the emotional tantrums of Rachel Maddow.

Craig Trainor is a criminal defense and civil rights attorney in New York City. Follow him on Twitter @TrainorLaw.

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