Sam Alito watched his career flash before his eyes on Tuesday. Immediately after the conclusion of the Supreme Court Term, NPR reported that the justice had announced his retirement, complete with Nina Totenberg’s retrospective on his tenure. Totenberg framed her look back at his career through the lens of Dobbs, the opinion striking down reproductive rights that Alito definitely didn’t personally leak to lock in his squishier conservative colleagues who he feared could retreat from his red meat, witch hunter-approved draft. Her article even addresses the leak, repeating Alito’s doth-protest-too-much complaints that the leak put the lives of the justices at risk.
The only problem is that Sam Alito has not — as of this writing — retired.
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Oops.
NPR has already put up a retraction.
Adding to the unintentional comedy, the story hit the website while Totenberg was still inside the court. Mark Walsh of SCOTUSBlog posted in their liveblog as the news spread: “The PIO just checking with Nina in the broadcast booth and Nina says this is a mistake and they are taking it down.”
It’s a testament to Totenberg’s career that Supreme Court officials saw this and their first impulse was, WE need to see if she’s right. Meanwhile, this is a distressing turn of events for someone down at NPR headquarters. To that person, a reliable source once told me that flying a flag upside down is the international symbol of distress.
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The photo caption gave it away before the copy did. “Justice Samuel Alito, seen here in April 2021, retired Friday.” That’s placeholder text. I mean… it quotes a former Alito clerk and spells his name three different ways! This is not a fully fleshed out draft.
But like any responsible journalist, Totenberg wrote this piece beforehand so it can be quickly cleaned up and posted if Alito were to retire. A journalist doesn’t want to be caught unprepared when Gerald Ford is eaten by wolves.
And there’s been a lot of speculation over Alito’s future. Above the Law’s former editors even have a bet on it. Elie Mystal saw Alito’s upcoming book launch as a sign that he planned to be out of a job by next October. David Lat, on the other hand, never bought it. When there’s that much smoke, you put together a draft — just as major publications pre-write obituaries all the time.
The trick is, not publishing those drafts until the event actually transpires. Some folks online think this article is proof that Alito is really retiring and NPR’s only error was publishing too soon. It’s possible, but there’s no need to make this more complicated. Bloomberg once pushed a 17-page Steve Jobs obituary onto the wire while Jobs was alive and running Apple. CNN has leaked draft obits for the living more than once. The graveyard shift hits the wrong button. It happens.
Totenberg’s draft is no longer up, but it opened by placing Alito among the justices whose names attach to a single decision:
Chief Justice John Marshall for his groundbreaking decision in 1803… Chief Justice Roger Taney for his infamous decision in the Dred Scott case… Chief Justice Earl Warren for his 1954 decision declaring racial segregation in public schools to be unconstitutional. And in our own times, Alito’s name is indelibly linked with the court’s opinion overturning a half century’s worth of decisions declaring that women have a right to abortion.
The Taney comparison is solid. My pre-write goes with James McReynolds, but everyone makes their own journalistic choices. Mine also includes the sentence opener: “Alito, who put the ‘Sir‘ in ‘insurrectionist.'” Just to give you all a little peek.
While Alito did not actually retire this morning, he could decide to make an honest outlet of NPR later. And if he does, this incident will go down as another premature leak. The most Alito way to go out.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.