I’m a huge fan of Justice Samuel Alito. His speech to the Federalist Society this week, delivered virtually, is a good example of why.
Alito’s message was that key American rights are in jeopardy. He noted, for example, that the Wuhan coronavirus pandemic has resulted in previously “unimaginable” restrictions on individual liberty. “We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020,” he stated.
Alito was careful to emphasize that he wasn’t diminishing the “severity of the virus’ threat to public health” or even taking a position on whether the restrictions are good public policy. However, he argued that the restrictions on public gatherings and worship services highlighted “trends that were already present before the virus struck,” including a “dominance of lawmaking by executive fiat” rather than by legislators and the relegation of certain rights to second class status.
Religious rights, for example. Alito homed in on the decision of Nevada to limit church attendance to 50 people, while reopening large casinos to 50 percent capacity. “It pains me to say to it, but in certain quarters religious liberty is fast becoming a disfavored right,” he concluded.
Take a quick look at the Constitution,” Alito urged. “You will see the free exercise clause of the First Amendment, which protects religious liberty. You will not find a craps clause, or a blackjack clause, or a slot machine clause.”
When it comes to same sex marriage, both religious and free speech rights are in jeopardy. As Alito noted:
[These days] you can’t say that marriage is a union between one man and one woman without fear of reprisal from schools, government and employers. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.
Alito delivered a well-deserved shot at the execrable Sen. Sheldon Whitehouse. He pointed to a recent brief filed by the Senator and four colleagues in a case regarding a New York City firearms transportation ordinance. Whitehouse and his colleagues said that a pro-gun ruling would further incite the growing movement to “restructure” the Court. Alito accurately described the brief as “extraordinary,” and added “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.”
As the Washington Post acknowledges, the Whitehouse brief was criticized even by some Democrats as too threatening. And the late Justice Ginsburg denounced the idea of court packing — the threat through which Whitehouse was trying to intimidate the Court.
Alito’s address has drawn howls from the left, as the Justice anticipated it would. For example, Slate’s Mark Joseph Stern condemned the speech as “bitter[ly] partisan” and as “[f]louting [Alito’s] ethical obligations.” However, the speech raises no problems of judicial ethics.
As Ed Whelan painstakingly shows, on all the matters that Stern finds controversial, the speech broadly reiterates what Alito has already spelled out in his written opinions. By contrast, Ruth Bader Ginsburg’s speeches, the ones that used to draw gushing praise from the left, addressed open issues on which the justice hadn’t yet ruled — e.g., same sex marriage and President Trump’s tax returns.
Elizabeth Warren also slammed Justice Alito’s speech. She tweeted:
Supreme Court Justices aren’t supposed to be political hacks. This right-wing speech is nakedly partisan. My bill to #EndCorruptionNow restores some integrity to our Court by forcing Justices to follow the ethics rules other federal judges follow.
This is an admission by Warren that Alito’s speech did not violate existing ethical rules for Supreme Court Justices. Hence, the mindless, empty name-calling.
Along with Justice Thomas, Justice Alito has fought valiantly on behalf of our constitutional rights. And starting this term, I expect that they will be ably aided in the struggle by Justice Barrett.
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