Sean McCabe The POLITICO 50 The Alitomayor Effect

At the Supreme Court, the spotlight often jumps from justice to justice. In 2012, Chief Justice John Roberts garnered widespread attention—both praise and criticism—for his decision to save the Affordable Care Act. This past term’s superficially unanimous ruling on the president’s recess appointment powers (or lack thereof in this case, involving the National Labor Relations Board) highlighted deep differences in approach between the evolutionary pragmatism of Justice Stephen Breyer and the textualism of Justice Antonin Scalia.

Justices Ruth Bader Ginsburg and Elena Kagan have become known for their impassioned and logically compelling dissents—recent examples being Ginsburg’s on contraceptive coverage and Kagan’s on public prayer. Justice Clarence Thomas, too, is known for his separate opinions, expressing a brand of originalism all his own. And as the court moves ever closer to recognizing a right to same-sex marriage, Justice Anthony Kennedy increasingly takes center stage as the crucial swing vote.

Yet the coverage often passes over two of the court’s more junior members, Justices Samuel Alito and Sonia Sotomayor. Too often we hear only that both justices are predictable partisans, neither idiosyncratic nor unique, representing the new extremes of right and left on the court. But while they do frequently disagree on hot-button issues, neither is so easily reduced to caricature. Closer analysis reveals distinct perspectives that strongly differentiate them from their fellow justices and unexpected commonalities that unite them—and can bend the whole gravitational field of the court in their direction. So ignore them no more: Understanding Alito and Sotomayor, both where they divide and where they converge, is essential to understanding the future of the Supreme Court.

The conventional wisdom does, of course, have some basis in truth: Alito, appointed by George W. Bush, and Sotomayor, named to the court by Barack Obama, frequently disagree on major issues. The divergence between them is apparent not just in cases addressing the fabric of our government—from presidential power to the functioning of Congress—but also in decisions affecting the stuff of our daily lives, from marriage equality to our rights as consumers and employees, from our relationships with guns to our encounters with religion.

This gap was as wide as it’s ever been at the end of this term, as Alito leaned decidedly rightward in two incremental opinions strongly hinting at even more rightward movement to come, and Sotomayor joined dissents in both cases, finding Alito’s opinions disingenuous and dangerous. One case involved home health care workers and their ability to unionize. There, Alito struck a substantial blow to public-sector unions, while leaving intact (for the time being) the decades-old precedent allowing their continued existence. The second case, filed by a family-owned for-profit chain of craft stores called Hobby Lobby, has quickly become a household name. Hobby Lobby challenged the mandate in Obamacare that companies with more than 50 employees provide those employees with contraceptive coverage, claiming that doing so would implicate the owners in practices forbidden by their religion. In ruling for Hobby Lobby, Alito claimed to be rendering only a narrow decision, emphasizing that Obamacare provided the employees other means of securing contraception. But when, in an unsigned order issued just days later, the court cast doubt on the feasibility of this workaround, Sotomayor castigated Alito’s decision as blatantly misleading, pointedly writing, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

Alito and Sotomayor’s sharp divergence over the contraceptive mandate reflects more than differing views about the balance between religious freedom and government-facilitated health care. It marks a major fork in the road. One path points to a future in which government will have dramatically reduced power to protect those who do not embrace the majority’s religious beliefs—and where the dominant religion will be given an enormously enlarged role in public life. The alternative is a future that more strictly separates church from state and more fully embraces religious, racial and ethnic pluralism. This divergence also reflects Sotomayor’s open discomfort with Alito’s ostensibly measured—but, in her view, more calculated than candid—approach to moving the court rightward.

While these sharp disagreements may align Alito and Sotomayor with opposite ends of the political spectrum, both justices have defied this ready narrative on other occasions. Although many of the court’s so-called conservatives are for the most part free speech absolutists, for instance, Alito has broken with his peers by showing palpable empathy for the victims of intentionally hurtful expression. In a solo dissent from an 8–1 decision shielding a religious group from liability for its deliberately injurious hate speech at a military funeral, he emphasized the pain the group’s speech was calculated to cause the deceased soldier’s family. Instead, it’s been Sotomayor who has consistently voted to protect free speech, even joining the chief justice and four other conservative justices in deploying the First Amendment to strike down state economic regulation of merchants who sell pharmaceutical companies the names of doctors who prescribe the costliest drugs.

Beyond their substantive disagreements, Alito and Sotomayor are about as different as possible when it comes to their public personas: Sotomayor’s off-the-bench activities have made her arguably the most visible justice in a generation (perhaps since William O. Douglas), while Alito abhors publicity with an almost Clarence Thomas-like intensity.

Proud of her background as the first Latina to serve on the court, Sotomayor is quick to come to the full-throated defense of victims of what she views as injustice. Last year, she issued a rare statement addressing the court’s decision not to hear a challenge to a conviction infected by a prosecutor’s racist remarks. She called the prosecutor’s conduct “deeply disappointing” and ended with a stinging rebuke: “I hope never to see a case like this again.” Sotomayor expressed similarly strong sentiments in her impassioned dissent from the court’s decision upholding Michigan’s referendum permanently barring all affirmative action by state educational institutions. There, she voiced her support for race-sensitive admissions policies with a candid discussion of why “race matters” still in America. Through her notably accessible opinions and her activities outside her judicial role, including her candid bestselling memoir, My Beloved World, she has broadened the reach of the court to many Americans.

Alito, in contrast, rarely makes public appearances if they can be avoided and typically takes a more cautious, soft-spoken approach in his decisions. He tends to be more sensitive to maintaining the delicate balance between the judicial and legislative branches than to bridging the gulf between the judiciary and the citizens whose lives it so powerfully shapes. Indeed, Alito has been conspicuously absent from the past four State of the Union addresses, a public spectacle Chief Justice Roberts, by contrast, regularly attends. Explaining his absence, Alito has suggested that such events make him feel “like the proverbial potted plant.”

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No question, then, that Alito has emerged as a profoundly different jurist from Sotomayor inside and outside the courtroom. But while this is an undeniable fact, it is not the whole story.

Although dramatic differences between these justices might lead one to think that they have little in common, that is not so. The two do sometimes agree on important issues, and when commonalities surface between them, these points of tangency are starting to shape the outlook of the court as a whole. Call this the Alitomayor Effect.

For now, it’s most visible in the court’s approach to balancing privacy and public safety in the face of new technology. The influential fingerprints of both justices can be seen in the court’s unanimous decision this term requiring police to obtain a warrant before searching an arrestee’s cellphone. Just two years ago, the court held that government installation of a GPS tracker to follow a suspect’s car for an extended period constituted a “search” under the Fourth Amendment. Writing for the majority, Scalia relied heavily on 18th-century law about physical trespass in drawing an analogy between old and new technologies. Although Sotomayor joined Scalia to give him a fifth vote, Alito (along with Breyer, Ginsburg and Kagan) pointedly refused, concurring only in the result. Notably, Alito and Sotomayor wrote separate concurrences. Both criticized Scalia’s reluctance to deal forthrightly with technological change. And both acknowledged that new technologies, from smartphones to the Internet, are transforming our expectations of privacy, perhaps requiring a new, more protective approach to the Fourth Amendment.

Alito and Sotomayor agreed that mechanically applying centuries-old doctrines to radically new circumstances might not suffice to preserve the core principles underlying the privacy protections of the Fourth Amendment and the speech protections of the First Amendment. Alito went so far as to caricature Scalia’s search for the Constitution’s “original meaning,” mockingly suggesting that his senior colleague’s methodology demands imagining a “very tiny constable … with incredible fortitude and patience” hiding in an 18th-century coach to monitor its movements for weeks on end. And this was not the first time Alito had mocked Scalia’s originalist approach to modern technologies: He did so earlier, in a case about selling violently interactive video games to minors, when he wryly noted that “what Justice Scalia wants to know is what James Madison thought about video games.”

Fast-forward to this year’s cellphone ruling, when “Alitomayor,” and a much more modern view of privacy, carried the day. Roberts, writing for a unanimous court, displayed a nuanced understanding of new technologies, the role they play in transforming our expectations of privacy and the role of the court in updating constitutional doctrine. Although Alito authored a concurrence emphasizing the role of the political branches and warning against protecting privacy entirely through “federal courts using the blunt instrument of the Fourth Amendment,” he did not have to lambaste Scalia’s old-fashioned imaginings this time around—neither Scalia nor Thomas opted to wave the originalist flag with a separate opinion.

The court’s speedy journey from the GPS decision to the cellphone decision (a journey that would have taken decades in Scalia’s stagecoach) shows the degree to which Alito and Sotomayor’s shared views, when they have them, can ultimately bring the rest of the court along.

The opposite is also true: When these two do not see eye to eye, as with the court’s decision in 2013 permitting police to take DNA samples from arrested suspects, the entire court can fracture in surprising ways. So when the court narrowly upheld Maryland’s program of DNA collection, Alito joined Kennedy’s pro-police majority, which analogized DNA sampling to the traditional practice of fingerprinting, while Sotomayor joined Scalia’s pro-privacy dissent, which recalled the dark history of royal abuses that gave rise to our Fourth Amendment and warned of the Orwellian “genetic panopticon” that he saw the court as threatening.

What we’ve learned is that Sotomayor is no mere copy of Ginsburg any more than Alito is the second coming of Scalia: Each has distinct views that will shape the court in profound ways in the years to come—even if it’s difficult to predict exactly how and when the Alitomayor effect will surface again. Given their relatively young ages, Alito, 64, and Sotomayor, 60, likely have decades left to leave their marks on American society. Whose vision will prevail? Anyone who claims to know doesn’t, of course, but we do know this: We cannot afford to ignore two of the court’s most influential emerging voices—sometimes in sharp disagreement, sometimes in surprising harmony, invariably defining the shape of things to come.

Laurence Tribe, Carl M. Loeb University Professor at Harvard Law School, is author, with Joshua Matz, of Uncertain Justice: The Roberts Court and the Constitution.