The Supreme Court is more conservative than it has been in many decades, with a 6-3 majority of Republican-appointed justices. GOP appointee and Chief Justice John G. Roberts Jr. has often served as the most moderate swing vote in recent years, but Amy Coney Barrett’s confirmation late last month means Roberts finds himself alongside five more right-leaning justices who can guide the court’s decisions if they vote together.
It’s against that backdrop that one of those justices, Samuel Alito, delivered an unusually political speech Thursday night to the Federalist Society. Alito alleged persecution of cultural conservatives — even, he suggested in some cases, by the court he serves on. He also weighed in on a number of hot-button political issues including abortion, LGBT rights and coronavirus restrictions, often airing grievances about how the court has decided those cases.
Here are a few key sections of the speech.
Same-sex marriage
In one of the most political sections of his speech, Alito doubled down on his dissent in the Supreme Court’s 2015 case legalizing same-sex marriage. Alito said at the time that the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy."
In his speech, Alito cited comedian George Carlin’s famous “Seven Words You Can Never Say on Television” routine and said it seems like a “quaint relic,” because dialogue on TV today “appears at time to consist almost entirely of those words.” He then compared that censorship to today, while claiming people could no longer publicly express opposition to same-sex marriage:
But it would be easy to put together a new list called “Things You Can’t Say If You’re A Student or Professor at a College or University or an Employee of Many Big Corporations.” And there wouldn’t be just seven items on that list; 70 times seven would be closer to the mark.I won’t go down the list, but I’ll mention one that I’ve discussed in a published opinion: You can’t say that marriage is a union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.That this would happen after our decision in Obergefell should not have come as a surprise. Yes, the opinion of the court included words meant to calm the fears of those who cling to traditional views on marriage. But I could see, and so did the other justices in dissent, where the decision would lead. I wrote the following: “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers and schools.” That is just what is coming to pass.
Alito went on to take issue with the arguments in a number of religious liberty cases. He suggested there was no actual harm in a Colorado bakery refusing to make a cake for a same-sex wedding, noting the couple “was given a free cake by another bakery, and celebrity chefs have jumped to the couple’s defense."
“For many today, religious liberty is not a cherished freedom; it’s often just an excuse for bigotry, and it can’t be tolerated even when there is no evidence that anybody has been harmed,” Alito said.
Targeting five Democratic senators
In another particularly political section, Alito went after five Democratic senators whom he accused of “an affront to the Constitution and the rule of law."
Those senators, led by Sen. Sheldon Whitehouse (D-R.I.), argued in a 2019 brief that the court should drop a key gun rights case in New York and suggestively referred to the idea that the court might need to be “restructured”:
After receiving this warning, the court did exactly what the city and the senators wanted. It held that the case was moot and it said nothing about the Second Amendment. Three of us protested, but to no avail. Now, let me be clear again: I’m not suggesting that the court’s decision was influenced by the senator’s threat, but I am concerned that the outcome might be viewed that way by the senators and others with thoughts of bullying the court.This little episode, I am afraid, may provide a foretaste of what the Supreme Court will face in the future, and therefore I don’t think it can simply be brushed aside. The senators’ brief was extraordinary. I could say something about standards of professional conduct, but the brief involved something even more important: It was an affront to the Constitution and the rule of law.
The brief was indeed extraordinary. Whitehouse and the others wrote that, “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics’ ” — a reference to a poll showing a majority of Americans supported that position.
Since then, and particularly following the GOP’s rush to fill Justice Ruth Bader Ginsburg’s seat after her death in an election year, momentum has built among some liberal activists to “pack the court,” or add justices to change the balance of power. That proposal seems to be off the table now that Democrats failed to gain a Senate majority.
But it was hardly the only example of lawmakers leaning on the court in recent years. As Politico’s Josh Gerstein notes, Alito reserved his criticism for Democrats even as President Trump has said numerous controversial things in recent years that applied political pressure on judges or suggested the judges were supposed to be his political allies. These instances have even drawn rebukes from two of Alito’s fellow GOP-appointed justices: Roberts and Neil M. Gorsuch.
Alito went on to compare the situation with the Democratic senators to what happens in authoritarian countries:
It is therefore wrong for anybody, including members of Congress, to try to influence our decisions by anything other than legal argumentation. That sort of thing has often happened in countries governed by power, not law.A Supreme Court justice from one such place recounted what happened when his court was considering a case that was very important to those in power. He looked out the window and saw a tank pull up and pulling its gun toward the court message was clear: Decide the right way, or the courthouse might be, shall we say, “restructured.” That was a crude threat. But all threats and inducements are intolerable.
Coronavirus restrictions
The theme of the speech was the judiciary in times of crisis, and Alito reserved some of his starkest warnings for public health restrictions that he suggests could go too far — in part because executives have been given broad berth by legislators and the courts.
Alito repeatedly emphasized that he wasn’t downplaying the “heavy human toll” of a crisis that has killed about 250,000 Americans — citing “thousands dead, many more hospitalized, millions unemployed.” But he suggested we were on a slippery slope and cited “previously unimaginable restrictions on religious liberty”:
I’m now going to say something that I hope will not be twisted or misunderstood, but I have spent more than 20 years in Washington, so I’m not overly optimistic. In any event, here goes: The pandemic has resulted in previously unimaginable restrictions on individual liberty.Now, notice what I am not saying or even implying. I am not diminishing the severity of the virus’s threat to public health. And putting aside what I will say shortly about a few Supreme Court cases, I’m not saying anything about the legality of covid restrictions, nor am I saying anything about whether any of these restrictions represent good public policy. I’m a judge, not a policymaker. All that I’m saying is this, and I think it is an indisputable statement of fact: We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.
Alito then referenced the rights to assemble for political purposes, to worship, and the right to a speedy trial.
He suggested lawmakers had given too much deference to “experts.” He suggestively alluded to the idea that it was done so that “policy-making would become more ‘scientific’ " — a section that could certainly be read today to reflect conservative resistance to the advice of medical experts like Anthony S. Fauci:
The current crisis has served as a sort of constitutional stress test, and in doing so, it has highlighted disturbing trends that were already present before the virus struck. One of these is the dominance of lawmaking by executive fiat rather than legislation. The vision of early 20th century progressives and the New Dealers of the 1930s was the policymaking would shift from narrow-minded elected legislators to an elite group of appointed experts. In a word, the policy-making would become more “scientific.”That dream has been realized to a large extent. Every year, administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarf the statutes enacted by the people’s elected representatives. And what have we seen in the pandemic? Sweeping restrictions imposed for the most part under statutes that confer enormous executive discretion.
Alito’s comments were somewhat oblique, but the thrust of them was unmistakably skeptical of coronavirus restrictions and even suggested a different course for the legislative branch. It was a Supreme Court justice essentially if suggestively offering political analysis and advice about how things might be done differently.
Alito cited a case the Supreme Court declined to review in Nevada. In that case, churches objected to a ban on religious gatherings of 50 or more people, regardless of the size of their facilities. They suggested they were treated differently from Las Vegas casinos, which were allowed to admit many more people. The court declined the emergency plea — a decision in line with the leeway it has given states in deciding their coronavirus-related restrictions:
To say that this [Nevada] provision confers broad discretion would be an understatement. Now, again, let me be clear: I’m not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies, the nature of which may be hard to anticipate. And I’m not passing judgment on this particular statute. I want to make two different points.First, what we see in this statute and what was done under it is a particularly developed example of where the law in general has been going for some time: in the direction of government by executive officials who were thought to implement policies based on expertise -- and in the purest form, of scientific expertise.Second, laws giving an official so much discretion can, of course, be abused. And whatever one may think about the covid restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed. All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.
Given Alito’s disagreement with the court’s decision in the Nevada case and the thrust of the rest of this speech, it was pretty clear he thought the court was indeed closing its eyes.