Justice Alito wears his heart on his sleeve. And he’s not afraid to take on the whole court to do it.

Yesterday, Justice Alito was the lone dissenting voice in the Supreme Court’s decision to allow Westboro Baptists to protest at military funerals. As Josh Blackman points out, though, it’s not his first time.

Last term, the Court decided United States v. Stevens which considered the constitutionality of a statute that criminalized the distribution of so-called “crush videos” (basically videos of killing cute fuzzy animals). This term, in Snyder v. Phelps, the Court decided whether the protests of the Westboro Baptists at the funeral of slain Marine Matthew Snyder were constitutionally protected. In both cases, 8 Justices found that the laws were unconstitutional. In both cases Chief Justice Roberts wrote a very narrow opinion protecting free speech, but leaving many questions open. In both cases, Justice Alito was the lone dissenter.

In each, his dissents have been emotional, leading to questions whether they are motivated by law or by emotion.

To quote from Snyder:

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.
Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church,approached as closely as they could without trespassing,and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity theWestboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree inTucson—proclaiming that she was “better off dead”11— their announcement was national news,12 and the church was able to obtain free air time on the radio in exchange for canceling its protest.13

Balancing the rights of all parties is a difficult act at best. Adding the context of military funerals only complicates the issue. However, the questions remain: should justices decisions carry such heavy emotional appeal? Or should justice be blind and bereft of emotion?

Last: did all eight get it wrong? Or is Justice Alito up in the night?

(h/t Josh Blackman)