In a provocative essay in the November 2005 Harvard Law Review, Richard
Posner, a federal appeals court judge appointed by Ronald Reagan, makes an even
more unvarnished version of that argument. Much of the high court’s
constitutional decision making, Posner asserts, is inherently political.

As much as a court “is supposed to be tethered to authoritative texts,”
Posner writes, the Supreme Court often finds itself facing issues to which “the
constitutional text and history, and the pronouncements in past opinions, do not
speak clearly.”

It is in that “broad open area where the conventional legal materials of
decision run out, and the Justices, deprived of those crutches, have to make a
discretionary call.”

Such cases, as Posner notes, inevitably bring into play competing
conceptions of social good, without solutions that can be derived with
certainty: the desire to ensure public safety vs. the need to protect those
accused of crimes; the rights of the fetus vs. a woman’s autonomy; the
importance of colorblindness vs. a recognition of the legacy of discrimination;
religion as a positive force in public life vs. the risk of marginalizing the
minority. On a more elevated but even more important plane, different judges
bring to the bench different attitudes about presidential power, federalism and
constitutional interpretation.

When you make the law on the Supreme Court, claiming you will "follow the law" is meaningless. And Alito knows this.