James Taranto builds Justice Samuel Alito a defense brief and publishes it as journalism. I built versions of this format during the cable years: curate the weakest opposition, hand it to the subject, and let the subject dismantle it while the reader absorbs the conclusion that the case has been answered. The interview is the disguise. The defense brief is the work.
Taranto, the Wall Street Journal’s editorial features editor, sat down with Alito for a 3,000-word August 7 interview about “practical originalism and its facile critics.” It reads like a profile. It operates like a closing argument.
“Justice Samuel Alito, who wrote the Supreme Court’s opinion reversing Roe v. Wade, is retiring, the court announced Tuesday.” National Public Radio’s Nina Totenberg wrote those words as the court’s term ended on June 30, stuck them atop a canned story, and pulled the editorial trigger. Her enormous scoop turned out to be empty, and NPR retracted it in minutes. Ms. Totenberg, 82, said she had been confused by an announcement from Chief Justice John Roberts about staff retirements. […] “Obviously I’m here for another term,” Justice Alito, 76, says a month later, during a rare summertime visit to his chambers.
Taranto opens with what I call the hostile anecdote as credibility anchor — Bad-Faith Catalog: narrative_framing; NR §B.6, folk-devils illustration. One bad report from the other side’s most visible journalist becomes atmospheric proof that everyone covering Alito is reckless. Totenberg’s age, the word “confused,” the “canned story,” the phrase “pulled the editorial trigger”: each detail reinforces the same signal. The press is sloppy. The press is eager. The press cannot be trusted with Alito.
The piece has not yet discussed a single judicial method. It has already assigned the witnesses.
This move ran nightly in the cable years. You find one bad moment from the opposing camp and let it perform the credibility work for everything that follows. The operation is not to prove that every critic is wrong. The operation is to make the reader expect wrongness whenever a critic appears.
“It’s not pleasant, in the sense that it’s a reminder of mortality,” he says. “It’s like, what are those vultures doing up there? They are flying around. But it goes with life tenure.” […] “I never knew what that meant… . So yeah, 20-somethings, 30-somethings, particularly if they’re not lawyers, I’m sure that’s how they see the court.”
The second frame arrives before the substance. Reframing institutional pressure as personal victimhood — Bad-Faith Catalog: narrative_framing — turns retirement pressure from a political question about the Supreme Court into a flock of vultures circling an aging man. The court’s composition disappears. Alito’s mortality takes its place.
Then comes the “20-somethings” passage. Taranto presents it as Alito’s charming distance from cable-news chatter. Its analytical function is harsher: public discussion of judicial power becomes unserious because the people having it are young, partisan, or not lawyers. The reasonable reader is invited to rise above the noise and stand beside the justice.
This is the same permission structure the cable segment deployed nightly: establish the hostile press, give the subject a human moment, dismiss the commentary class, and make the audience receptive rather than evaluative. The reader is not asked to examine Alito’s record. The reader is asked to protect Alito from the people who examine it.
Mr. Canellos’s book has many interesting details and might have been good if he had written without an ideological agenda or with the skill to conceal it. Instead, his premise pervades the narrative like a Freudian fixation: that a conservative worldview is deviant or pathological and requires a psychological explanation. Mr. Canellos puts Justice Alito’s philosophy down to “intense feelings of anger and betrayal” and trots out a series of gossipy quotes from people who knew the young Sam Alito and disapprove of the older man’s work on the court.
Here Taranto deploys the motive-shift — Bad-Faith Catalog: ad hominem, circumstantial variety. The question is whether Canellos’s account of Alito’s jurisprudence has substance. Taranto changes the question to whether Canellos has an ideological agenda, a Freudian fixation, or insufficient skill at concealment.
When the substance cannot be answered, trash the source so the argument never arrives.
The book’s argument — that Alito’s “practical originalism” can produce outcomes indistinguishable from partisan preference — is not met on its terms. It is recoded as psychology. Anger. Betrayal. Pathology. The reader is told that the critic is not making a jurisprudential case but confessing a personal disorder.
The cable greenroom had a blunter vocabulary for this. The messenger dies and the message never lands.
Mr. Canellos quotes sources who agree. “David felt Alito’s judgments became more ideologically motivated than he expected they would be,” says the widower of David J. Stoll, who clerked for Judge Alito on the Third U.S. Circuit Court of Appeals in 1991-92 and later worked for Lambda Legal […] The widower reports that Stoll found the justice’s views on same-sex marriage “personally distressing.” But if Stoll formulated an originalist argument for his position, it doesn’t make it into Mr. Canellos’s book.
This is the source-tag move — Bad-Faith Catalog: ad hominem, circumstantial variety; WSJ §A.8, the “as-a-identity” credibility move inverted. The widower’s account is secondhand. The affiliation with Lambda Legal is immediate. The professional judgment is converted into a tribal signal before the reader can consider what it says.
Taranto then adds a second maneuver: because Stoll’s originalist argument does not appear in Canellos’s book, the criticism is treated as lacking originalist standing. The strongest version of the opposition is excluded, and the reader is shown only the weakest version — a personally distressed clerk, a psychoanalyzing author, a confused teacher.
This is the selectional strawman — Bad-Faith Catalog: strawman. Select the version of the opposition you can defeat, present it as the whole, and let the audience generalize. A defense brief does not subpoena the witness who sinks the case.
The piece builds a sealed room. The arguments that could challenge Alito are locked outside. Only the ones that flatter him are admitted.
“You can take an important principle that is in the Constitution, like equal treatment,” Justice Alito says, “and if you view it at a very high level of generality, you can say that the Constitution requires equal treatment in a context that never occurred to, or never could have occurred to, those who adopted the provision.” If they had confronted the question, he has little doubt they would have answered no. […] “There is not an algorithm that yields a definitive answer to every question that is asked, and determining the applicable level of generality requires an analysis of what this provision is getting at.”
This is the reasonable-center architecture — NR §B.2, distinguishing-as-purity-guard; WSJ §A.1, frame-engineered relabeling. Alito positions himself between mechanical originalism, associated with Scalia, and living constitutionalism, associated with Kennedy. One side is too rigid. The other makes the law up. Alito is the mature practitioner who understands that “there is not an algorithm.”
The subject defines the spectrum, and the journalist reports the spectrum as given.
The substantive criticism is sitting outside the frame: “practical originalism” may be outcome-oriented judging wearing a methodological label; the discretion over the “level of generality” is precisely where preference enters; and Alito’s practical judgments repeatedly align with the political preferences of the faction that elevated him. That argument is not placed on the page for Alito to answer because it is the one the format cannot safely accommodate.
The reasonable-center frame is not a description of where Alito sits. It is a description of where the reader is being placed.
“Is this court very conservative? Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? You know, yes,” she said. “But is this court the kind of puppet for the current administration? I think definitely not.”
This is opponent-vouching. Justice Elena Kagan’s qualified defense is more useful to Taranto than another conservative’s assertion of independence because a liberal justice’s concession carries borrowed credibility. Kagan concedes that the court is conservative and wrong on much. Then she denies that it is a puppet.
But her vouch concerns the court as a whole, not Alito in particular. Taranto uses the general statement to excuse the specific record. The court is not a puppet; therefore Alito’s conduct is not what it looks like. The part disappears inside the whole.
“I vote in every case the way I think the case should be decided,” Justice Alito says. “If that means a high correlation with what Trump wants, fine. If it means zero correlation with what Trump wants, fine as well.” […] “One assumes any liberal justice would say the same about her votes against the administration.”
This is the piece’s load-bearing paragraph: self-authorization as evidence — Bad-Faith Catalog: circular_sourcing. Alito says he votes independently. Taranto presents the assertion as proof that he votes independently.
The interview format guarantees the subject the last word. The advocacy is in the format.
Taranto’s aside — “One assumes any liberal justice would say the same” — performs false equivalence as inoculation. If every justice says this, then the accusation is trivial. If the accusation is trivial, the structural record need not be examined.
But the record the piece leaves unmentioned is the voting record itself. Taranto does not cite a single case in which Alito ruled against a position he had publicly endorsed. He does not measure the claimed independence against the documented pattern of outcomes. That is the evidentiary anchor the independence claim needs. It is entirely absent. The justice is asked whether he is independent and answers yes, and the journalist reports the answer, and no case is placed on the page to test it.
The independent-judge frame works because testing it would require the journalist to do the analytical work the piece exists to avoid. In the cable segment, this was the final-thirty-seconds move. The audience remembers the answer, not the question.
“When he was on that short list, and a couple of newspaper and TV people came to interview me, and I had remembered saying Sam had a strong moral compass,” [the teacher] says… “Even his penmanship was very well formed. There was nothing sloppy about it. He was very methodical, very methodical. Does that equate with rigidity? I’m not going to answer that one.”
The closing is the character witness as closing argument and the dissonant witness as proof of the subject’s constancy — Bad-Faith Catalog: narrative_framing. Taranto selects a retired English teacher who once praised Alito, now does not understand his judicial work, and then lets Alito answer with graciousness: “She was a very good teacher.”
Her confusion is framed not as evidence that Alito changed, but as evidence that she misunderstood him all along. His current positions become the natural extension of the “moral compass” she identified in youth.
Taranto calls her evaluation “results-oriented judging,” applying a phrase usually aimed at judges who decide cases by desired outcomes to a layperson judging a public figure by judicial outcomes. It is a clever inversion. It is also the final act of curation.
The reader laughs at the penmanship. That laughter is the conclusion.
Three thousand words of curated defense end with a woman who thinks good handwriting might indicate rigidity. The weakest critic occupies the closing position because the closing position is the selection. The audience is not required to rebut the strongest argument against Alito. It is merely encouraged to stop taking criticism seriously.
So here is what Taranto’s interview actually is, taken together.
It opens by making the media the villain. It turns retirement pressure into personal persecution. It reframes Canellos’s jurisprudential argument as psychological pathology. It tags the widower’s criticism with Lambda Legal and calls the resulting discomfort a tribal defect. It selects the weakest version of the opposition and presents it as the whole. It lets Alito define “practical originalism” as the reasonable middle between caricatured extremes. It borrows Kagan’s credibility to cover the subject’s specific record. It lets Alito’s own assertion of independence serve as evidence of independence. And it closes by ridiculing the weakest critic until the reader concludes that all criticism is equally weak.
Every structural choice serves one operation: converting the authority of a Supreme Court justice into the authority of a Wall Street Journal article.
This is not journalism. It is a defense brief written in the institutional voice of the Wall Street Journal editorial page, built on the assembly line: the subject’s words do the work the journalist was hired to do; the critic’s voice appears only long enough to be pre-rebutted; both sides are technically quoted, so the reader leaves believing balance occurred.
The balance is cosmetic.
The verdict was written before Taranto walked into the building.
And the closing defense — “I vote in every case the way I think the case should be decided” — carries more weight than Taranto intended because it is exactly what every partisan judge who ever lived has said about herself. The practical originalist and the partisan judge produce the same voting record. The difference is that one has a jurisprudential label and the other has not found one yet.
The mirror test is simple. If a liberal justice dissented in every major case an administration cared about and delivered the same sentence, the Journal opinion page would not call it humility. It would call it activism.
The label is not describing a method.
It is naming a team.
— Phukher Tarlson