Supreme Court Justice Samuel Alito made a forceful entry into various culture wars on Thursday evening with a keynote address at the annual meeting of the conservative Federalist Society — a speech that, with some minor edits and more energy in the delivery, could have been a stemwinder given by a Republican Senate candidate on the stump.
It was a remarkable performance by a sitting Supreme Court justice, and not in a good way. And the most striking part was that he declared — with a piercing sense of persecution and resentment — that he and his audience were a persecuted minority, despite speaking to a group that had spent four years exercising remarkable power over the country’s judiciary from a position of nearly unparalleled personal power.
It is, I suppose, true enough that the Federalist Society represents a minority: Its constitutional vision just lost the popular vote in seven of the last eight presidential elections, and the views of legal conservatives like Alito are so radically unpopular both in the profession and without that Republican politicians just spent the confirmation hearings for new Supreme Court Justice Amy Coney Barrett furiously denying to the American people that she could possibly share them. (She does.)
But neither the members of the Federalist Society nor Alito are a persecuted minority by any fair measure of the term. Partisan Republican judges now have an iron grip on the federal judiciary; a Republican nominee has been the median vote of the Supreme Court since 1970 and, despite some liberal victories, the court’s output throughout this period has been much more conservative than liberal — and is getting more so over time. With the confirmation of Barrett, Alito is in a strong position to impose his mostly unpopular policy views on 328 million Americans who, by and large, don’t agree with him.
Alito is in a strong position to impose his mostly unpopular policy views on 328 million Americans who, by and large, don’t agree with him.
What was clear from his speech (and approaching a rational estimation of the current situation) is that Alito expects the new 6-3 Republican majority on the court to go to war on numerous fronts with Democratic elected officials — and that the rights and public safety of ordinary members of the public will be irrevocably lost in that fight.
In the short term, the most disturbing part of Alito’s speech were his remarks about the government’s response to the Covid-19 pandemic. Speaking on a day in which more than 160,000 Americans contracted the deadly virus and hospitals in many states are straining from overcapacity, Alito remarkably suggested that the government response has been too draconian, asserting that the Covid-19 response highlighted a “disturbing trend” of policies implemented by the executive branch based on — God forbid — “scientific expertise.”
That is a view already expressed in two judicial dissents, which held that Covid-19 orders that cover churches as well as other indoor gatherings violate the First Amendment. And, most disturbingly, Alito also suggested that the Supreme Court’s landmark 1905 decision Jacobson v. Massachusetts, which upheld a mandatory smallpox vaccination law during a pandemic, should be read narrowly — i.e., that it might not apply to the circumstances of today’s pandemic.
Whether states and municipalities have the right to impose requirements on individual citizens to protect the public health is not merely an abstract question today. Hyperpartisan Republican courts in Michigan and Wisconsin have struck down popular Covid-19-related executive orders issued by Democratic governors that weren’t laws passed by Republican legislatures. When Alito suggests that the courts should restrict the ability of “experts” in the executive branch to implement policy, what he really means is that responsible governors are likely to find their ability to deal with an escalating pandemic hamstrung by the Supreme Court.
States’ Covid-19 responses were not Alito’s only foray into a hot-button partisan dispute. Alito also criticized the Supreme Court’s decision to recognize the right of Americans to same sex marriages in Obergefell v. Hodges because, according to Alito, “you can't say that marriage is the union between one man and one woman” because it might be labelled “bigotry.”
It is, perhaps, no wonder Alito disdains the idea of scientific expertise in government administration.
That would be embarrassing nonsense coming from a high school debate team, let alone an associate justice of the Supreme Court of the United States: Alito, and anyone else, remains free to say that same-sex couples should be excluded from the civil benefits of marriage (after all, he did just that on Thursday night). It’s also true that other people can criticize his views — even harshly — as discriminatory, because that’s what free speech is, regardless of the Obergefell ruling.
It is a perverse inversion of the First Amendment to suggest that some views should be exempt from other people’s criticism; saying that Obergefell was wrongly decided because opponents of same-sex marriage might be called bigots is as silly as arguing that Loving v. Virginia was wrongly decided because opponents of interracial marriage might be called bigots. (Both kinds of people are bigots.)
Alito also heaped derision on various efforts to ensure that women have fair access to contraceptives. Most strikingly, he attacked a perfectly reasonable policy in Washington state that required pharmacies to provide Plan B to women with a valid prescription, although individual pharmacists could claim a religious exemption if the prescription could be filled by a co-worker. In doing so, Alito falsely claimed that “morning after” pills “destroy an embryo after fertilization” — i.e., that they are not a de jure contraceptive covered by Griswold v. Connecticut, but a de jure abortion procedure covered by Roe v. Wade, which conservatives seek to overturn. (It is, perhaps, no wonder he disdains the idea of scientific expertise in government administration.)
In perhaps the most hypocritical moment of the speech, Alito attacked an amicus brief submitted by five Democratic senators in a recent gun control case, which pointed out that a majority of the public believed that the court was “too influenced by politics.” Alito asserted that the brief itself is was “an affront to the Constitution and the rule of law.”
And yet the rest of his speech demonstrated all too well that not only are the senators’ claims about the politicized nature of the current court accurate, but that we cannot expect the current court to change — even in the face of Democratic majorities — anytime soon.