Supreme Court Associate Justice Samuel Alito delivered candid takes on several divisive issues facing the U.S., from the measures put in place to address the COVID-19 pandemic to tensions between gay rights and religious freedom, during an address to the conservative Federalist Society on Thursday.
Alito said the restrictions imposed by political leaders in order to contain the coronavirus pandemic have “resulted in previously unimaginable restrictions on individual liberty” and denounced recent Supreme Court decisions holding up orders he believed discriminated against religious groups. He argued the pandemic highlighted a wider assault on religious freedom as conservative views are increasing equated with “bigotry.”
The conservative justice insisted he was not “diminishing the severity of the virus’ threat to public health,” or “saying anything about the legality of COVID restrictions” or “whether any of these restrictions represent good public policy.”
“I’m a judge, not a policymaker,” he said.
Alito went on to say the “severe, extensive and prolonged” restrictions imposed in response to the pandemic represented an unprecedented curtailment of rights that would clearly be protected by the First Amendment under normal circumstances, creating “a sort of constitutional stress test.”
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He said the restrictions “highlighted distinct trends that were already present before the virus struck” such as “the dominance of lawmaking by executive fiat rather than legislation.”
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Alito painted the use of executive orders as the culmination of a dream held by “early 20th century progressives” and “the New Dealers of the 1930s” in which “policymaking would shift from narrow-minded elected legislators to an elite group of appointed experts.” And he warned that after “the pandemic has passed, all sorts of things can be called an emergency or disaster of major proportions” to justify similar measures.
He also said the pandemic restrictions were evidence that “in certain quarters, religious liberty is fast becoming a disfavored right.” Alito decried the Supreme Court’s decision to let restrictions stand in California and Nevada that he said “blatantly discriminated against houses of worship.”
Regarding Nevada’s restrictions limiting religious services to 50 people while allowing casinos to open at 50%, Alito said, “The state’s message is this: ‘Forget about worship and head for the slot machines, or maybe a Cirque du Soleil show.'”
Alito also claimed the pandemic revealed the already “growing hostility to the expression of unfashionable views” because some of the “restrictions are alleged to have included discrimination based on the viewpoint of the speaker.” He said many conservative social views were now prohibited speech at most institutions of higher education and major corporations.
“You can’t say that marriage is a union between one man and one woman,” Alito cited as an example. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
Alito, 70, joined the court in 2006. He was nominated by former President George W. Bush and confirmed by a 58-42 vote in the Senate.
Many Democrats and Supreme Court watchers criticized Alito’s comments as too openly political for a Supreme Court justice.
“Supreme Court Justices aren’t supposed to be political hacks,” tweeted Sen. Elizabeth Warren, D-Mass. “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.”
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. https://t.co/VAjFAqGesN
— Elizabeth Warren (@SenWarren) November 13, 2020
Human Rights Campaign President Alphonso David tweeted, “Last night, Justice Alito shed any pretense of impartiality in a politically charged speech.”
“If you thought Joe Biden’s victory would end the Trump Era, think again,” said Aaron Belkin, director of Take Back the Court – a group that seeks to expand the Supreme Court – in a statement. “Justice Alito’s wildly inappropriate speech is a reminder that Republicans have packed the Supreme Court with extremist politicians in robes – and they’re planning a partisan revenge tour.”
Gabe Roth, executive director of Fix the Court, which promotes ethics and transparency, said Alito’s remarks were “more befitting a Trump rally than a legal society.” Fix the Court advocates for Supreme Court reforms such as term limits and televised proceedings, as well as making the public more aware of when the justices speak in various forums and what they say at those events.
“What’s more, Alito’s decision to speak about COVID’s impact on religious exercise is unconscionable at a time when cases concerning this very topic remain active at the Supreme Court and across the federal judiciary,” Roth said in statement on Friday. “If there were enforceable recusal standards at the high court, this would be a ripe opportunity for a motion to disqualify.”
Roth said Alito’s address demonstrated the need for the Supreme Court to adopt a formal code of conduct that “would encourage them to think twice before making political speeches to partisan organizations and further eroding the public’s trust in their impartiality.”
Others came to Alito’s defense amid the objections to his statements.
On Friday, President Donald Trump tweeted without comment a link to a Breitbart article about Alito’s remarks.
“Justice Alito is a hero. Protecting religious liberty and freedom of speech in America is paramount,” said Trump campaign lawyer Jenna Ellis.
Though it was unusual for a Supreme Court justice to lay out his or her views so explicitly, Alito’s remarks did not reveal thoughts he hadn’t expressed before in his legal opinions.
Edward Whelan, president of the conservative Ethics and Public Policy Center, said in a statement that the speech “broadly reiterates what Alito has already spelled out in his written opinions.”
“It’s one thing for a justice to speak publicly about an open issue on which the justice hasn’t yet ruled (as Justice Ruth Bader Ginsburg did with respect to same-sex marriage and President Trump’s tax returns). It’s a very different – and much less remarkable – thing for a justice to restate positions that he has already formally adopted,” Whelan said.
For example, Alito’s opposition to the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage, is well documented. He and Justice Clarence Thomas both dissented in that decision, along with Chief Justice John Roberts and Justice Antonin Scalia.
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Last month, when the Supreme Court declined to hear an appeal from Kim Davis – a Kentucky county clerk who refused to issue marriage licenses to same-sex couples – Alito and Thomas said her case was not the right one to consider further the issue of religious freedom in an era of expanding LGBTQ rights. But the two conservative high court jurists also called Davis “one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision” and warned “she will not be the last.”
“Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss,” wrote Thomas in the statement that was joined by Alito.
In Thursday’s remarks, Alito did not directly address recent calls from some Democrats and progressives to expand the Supreme Court in order to change the 6-3 conservative majority. But he strongly objected to a recent brief from five Democratic senators regarding a gun rights case in which they said the “Supreme Court is not well. And the people know it.”
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The senators cited a Quinnipiac University poll that found a majority of Americans think the court should be “restructured in order to reduce the influence of politics.”
In his Federalist Society address, Alito called the remarks written by Sen. Sheldon Whitehouse, D-R.I., a “threat” and “an affront to the Constitution and the rule of law.”
“The Supreme Court was created by the Constitution, not by Congress,” he said.
“We exercise the judicial power of the United States. Congress has no right to interfere with that work any more than we have the right to legislate. Our obligation is to decide cases based on the law, period. And it is therefore wrong for anybody, including members of Congress, to try to influence our decisions by anything other than legal argumentation.”
Alito said “that sort of thing has often happened in countries governed by power, not by law.”
“Alito outs himself as full-on partisan crusader. At Federalist Society, no less,” tweeted Whitehouse in response to news of Alito’s comments.
Contributing: Richard Wolf
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This article originally appeared on USA TODAY: Supreme Court Justice Samuel Alito ripped for ‘right-wing’ speech